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A  TREATISE 


ox 


THE  LAW 


or 


Circumstantial  Evidence 


ILLUSTRATED  BY  NUMEROUS  CASES. 


BT 


ARTHUR  P.  WILL, 

OF  THE  CHICAOO  BAB. 


PHILADELPHIA: 

T.  &  J.  W.  JOHNSON  &  CO., 
1896. 


Copyright,  1896, 

BY 

T.  &  J.  W.  Johnson  &  Co. 


TABLE  OF  CONTENTS. 
PART  I. 

PRELIMINARY  CONSIDERATIONS. 
DIVISION  I. 

EVIDENCE   IN   GENERAL. 

CHAPTER  I. 

THE  NATURE  OF  EVIDENCE. 

PAOK 

The  Object  of  Intellectual  Research 1 

The  Judgment,  what  is 1 

Evidence,  what  is «        .  1 

Testimony,  what  is ••  2 

Evidence,  Law  of,  embraces  what »        .  3 

Evidence,  Rules  of,  what  are •        •  2 

Proof,  distinguished  from  Evidence  ...*•*•  3 

CHAPTER  II. 

THE  VARIOUS  KINDS  OF  EVIDENCE. 

The  Nature  of  Truth 4 

Intuition  and  Demonstration  contrasted 4 

Moral  Evidence,  what  is 5 

The  Design  of  this  Work .  5 

CHAPTER  III. 

NATUTE  OF  THE  ASSURANCE  PRODUCED  BY   DIFFERENT  KINDS  OP    EVIDENCE. 

The  Nature  of  Belief 6 

Probability,  Meaning  of 6,  7 

Probability,  contrasted  with  Certainty 7 

Moral  Probability 7 

Moral  Certainty 8 

iii 


IV 


CONTENTS. 


PAGE 

Moral  Certainty  not  to  be  Expressed  by  Numbers     .        .        .        .         8,  9 

Experience 10,     11 

Analogy,  Use  of 11 


DIVISION  II. 

CIRCUMSTANTIAL  EVIDENCE. 

CHAPTER  I. 
THE  CHARACTERISTICS  OP  CIRCUMSTANTIAL  EVIDENCE. 

As  compared  with  Direct  Evidence 15 

Definition  of  Circumstantial  Evidence 15,     16 

Presumptive    Evidence   not    synonymous    with    Circumstantial  Evi- 
dence      .         . 16,     17 

Upon  what  Force  of  Circumstantial  Evidence  depends  .        .        .17 

CHAPTER  II. 

PRESUMPTIONS. 

What  is  Imported  by  Presumptions 18 

Legal  Presumptions  and  Natural  Presumptions  contrasted  .        19,  20 

Presumptions  are  based  upon  Reason 21 

Presumptions  are  varied  as  Circumstances 22 

There  can  be  no  Arbitrary  Rules  to  estimate  Foi'ce  of  Presumptions     22,  23 

Certain  Classifications  of  Presumptions 24 

Statutory  Presumptions 25 

CHAPTER  III. 

RELATIVE  VALUE  OP  DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE. 

Circumstantial  Evidence  is  inferior  to  Direct 27 

Inaccurate  Judicial  Language        .        .        .         .        .        .        .        28,     29 

Proper  Effect  of  Circumstantial  Evidence 29 

All  Evidence  Circumstantial 30 

Circumstantial  and  Direct  Evidence  not  mutually  opposed     .         .        .31 

Fallibility  of  Testimony 32,     33 

Cautionary  Suggestions 433,     3 

CHAPTER  IV. 

THE  SOURCES  OP  CIRCUMSTANTIAL  EVIDENCE. 

What  are  Sources  of  Facts 35,    36 

A  Crime  is  an  Act  proceeding  from  a  Wicked  Motive  ....        36 
Latitude  to  be  allowed  in  Admission  of  Evidence    .        .        .        .    36,    37 


CONTENTS.  V 

PART  II. 

INCULPATORY  INDICATIONS. 
DIVISION  I. 

INCULPATORY   MORAL   INDICATIONS. 

INTRODUCTORY  REMARKS. 

CHAPTER  I. 

MOTIVES  TO  CRIME 

PAGE 

Strict  Meaning  of  Motive 40 

The  Foundation  of  ResponBibility 41 

Inadequacy  of  Motives  to  Crime 41,  42 

Some  Common  Motives  to  Crime 42 

Presumption  arising  from  Marital  Relation 43,  44 

Desire  to  obtain  Insurance  Money  as  a  Motive 46 

Proof  of  Motive  fortifies  other  Circumstances  pointing  to  Guilt    .         .  47 

Danger  of  attaching  undue  Importance  to  External  Circumstances  .  47 

Adequacy  of  Motive  of  little  Importance 49 

Every  Man  accountable  for  Natural  ('onsequences  of  his  Acts    .        .  50 

As  to  the  Rule  of  "  in /arorem  mYce." 51 

CHAPTER  II. 

THE  INTENTION  AND  DECLARATIONS  AND  ACTS  INDICATIVE  THEREOF. 

Section  I. 
Consideration  of  the  Principles  Governing  Proof  of  the  Intent. 

The  Influence  of  Malice 52 

As  to  the  Amount  of  Evidence  to  show  Intent 52 

Section  II. 

Threats. 

Admissibility  in  Evidence  of  Threats,  and  Ground  therefor   .        .        .53 

As  to  Threats  made  in  General  Terms 55 

Question  of  Time  as  bearing  on  Threats 56 

Proof  of  Threats  does  not  dispense  with  Proof  of  Criminal  Act .        .        57 


yi  CONTENTS. 

Section  III. 
Evidence  of  Previous  Attempts  and  other  Crimes. 

PAGE 

The  General  Rule, •         .     57,  58 

Exceptions, 59 

Rarity  of  Express  Declarations  of  Intention, 61 

The  Rule  in  Pennsylvania, 63 

Statutory  Provisions, 64 

The  Proof  of  Guilty  Knowledge, 72 

CHAPTER  III. 

PREPARATION   AND  OPPORTUNITY  FOR  THE  COMMISSION  OF  CRIME. 

What  evinces  Preparation, li  et  seq. 

Opportunity  is  Essential, 77 

Possession  of  Means  of  Crime, 77 

CHAPTER  IV. 

RECENT  POSSESSION   OF  THE  FRUITS  OF  CRIME. 

Section  I. 

General  Statement  of  the  Law  on  this  Subject. 

Possession  usually  relied  on  in  Theft  and  Robbery,  .        .        .        .78 

Necessity  of  making  out  Corpus  Delicti, 78 

It  is  the  Nature  of  the  Possession  that  is  Important 79 

The  Effect  to  be  given  to  Proof  of  Possession,      .        .        .        ,     19  et  seq. 
Is  the  Question  one  of  Law  or  of  Fact  ?  .        .        .        ,  79  e^  seq. 

The  Defendant  may  explain  Possession, 84 

What  Possession  raises  the  Presumption, 85 

Suspicion  may  arise  from  Explanation, 58 

Effect  of  Good  Character  on  this  Question,      .        .        .        .     -  .        .87 

Section  II. 
Tlie  Element  of  Time. 

Force  of  Rule  depends  on  Recency  of  Possession,     .        .        .        .        .     ^8 

Question  of  Recency  is  one  of  Fact, 89 

Possession  whether  Recent  or  Remote  is  for  Jury, 90 

Section  III. 
Tlie  Nature  of  the  Possession. 

Possession  must  be  Exclusive, 90 

As  to  Possession  of  Married  Man 91 

The  Fact  of  Possession  is  a  Question  of  Fact,        .....        93 


CONTENTS.  vii 

Section  IV. 
Tlie  Nattire  of  the  Crime  to  be  Inferrea. 

PAGE 

Possession  may  Point  to  Theft .        .        .94 

Possession  may  Point  to  Receiving  Stolen  Groods  .        .        .        .        94 

Possession  may  Point  to  Arson 95 

Possession  may  Point  to  Burglary 95 

Possession  may  Point  to  IMurder 98 

Rule  must  be  applied  cautiously 99 

Necessity  of  Identifying  the  Goods 100 

Section  V. 

Corroborative  Circumstances. 

Corroboration  is  asual 103 

Corroboration  need  not  be  Direct 102,  103 

CHAPTER  V. 

UNEXPLAINED  APPEARANCES  OF  SUSPICION  AND  ATTEMPTS  TO  ACCOUNT  FOR 
THEM  BY  FALSE  REPRESENTATIONS. 

Reasonableness  of  requiring  Explanations 104 

Suspicious  Circumstances,  even  without  Explanation,  not  sufficient  .        108 

Force  of  the  Rule 108 

The  Effect  of  Mendacity 109 

CHAPTER  VI. 

CONFESSIONAL  EVIDENCE. 

Section  I. 
General  Consideration  of  the  Rules  relating  to  Confessions. 

Confessions  are  Direct  Evidence 113 

Confessions  are  Judicial  or  Extra-judicial 113 

Confessions  must  be  Voluntary .        .113 

What  constitutes  Undue  Influence 114 

Burden  of  Proving  a  Confession  Voluntary 114 

Weight  of  Voluntary  Confessions 115 

Confessions  to  be  received  with  Caution 115,  116 

Confessions  must  be  Corroborated        .         .        .         .        .         .        116,  117 

Confessions  must  be  taken  as  a  Whole      .......  123 

Credibility  of  Confessions  is  for  the  Jury 133 

Credibility  of  Confessions  made  while  Intoxicated 135 

Section  II. 

Indirect  Confessional  Evidence. 

Caution  to  be  observed ;        .        .        •        .        136 


yiii  CONTENTS. 

PAGE 

Acts  and  Words  constitute  Confessional  Evidence         ....  127 

Effect  of  Silence  in  Crime 138 

Effect  of  Flight,  Concealment,  etc. 130 

Caution  as  to  Flight 135 

Weight  to  be  attached  to  this  Kind  of  Evidence 137 


CHAPTER  VII. 

THE  SUPPRESSION,  DESTRUCTION,    AND  FABRICATION  OF  EVIDENCE. 

Weight  of  Evidence  depends  on  what 138 

The  Existence  of  Evidence  must  be  shown 141 

Effect  of  Concealing  a  Witness 142 

Attempt  to  Produce  False  Evidence 142 

Cautionary  Suggestion 143,  144 

As  to  Effacing  Marks  of  Ownership 146 

As  to  Attempts  to  Prevent  Post-mortem  Examination       ...         146 

Other  Suspicious  Facts 147,  148 

Unsuccessful  Attempt  to  Prove  Alibi 150 

CHAPTER  VIII. 

EXPERT  TESTIMONY. 

Section  I. 

Consideration  of  the  Rules  governing  the  Admission  of  this  Kind  of 

Testimony. 

General  Rule  regarding  Opinion  Evidence 153 

Exception  in  Favor  of  Skilled  Witnesses 153 

Legal  and  Moral  Obligations  not  Subject  of  Expert  Testimony     .         .     154 

The  Exception  Limited  to  what 154,  155 

Opinions  not  Allowed  where  Facts  Uncontroverted      ...  156 

^fanner  of  Interrogating  Expert 158 

How  the  Hypothetical  Question  must  be  Framed  .        .        .        .163 

Section  II. 

The  Value  of  Expert  Testimony. 

Rests  on  same  Basis  as  other  Evidence         .        .        .        .        .        .        165 

Dangers  of  Expert  Testimony 166 

Expert  Testimony  as  to  Blood-stains  .        ,        •        .        .      167  et  seq. 


CONTENTS.  1^ 


DIVISION  ir. 

EXTRINSIC   AND   MECHANICAL   INCULPATORY   INDICATIONS. 
INTRODUCTORY  REMARKS. 

CHAPTER  I. 
IDENTIFICATION  OF  PERSON. 

PAGE 

Proof  of  Identity  by  Circumstantial  Evidence 179 

Identification  frequently  Difficult I79  jyo 

The  Quantity  of  Light  as  bearing  on  this  Question        .        .        .        .182 

LiabiUty  of  Mistake  increased  in  Case  of  Inference    ....  183 

Family  Likeness  as  bearing  on  Identification 183 

Identification  by  comparing  Fragments  of  Garments,  etc.        .        .  186 

Identification  by  Means  of  Permanent  Marks 190 

Identification  by  Means  of  Instruments  of  Crime,  etc.      ...  191 

Identification  by  Means  of  Blood-stains I93 

Identification  by  Means  of  Tracks I94 

CHAPTER  II. 

IDENTIFICATION  OF  ARTICLES  OF  PROPERTY. 

Property  may  be  Identified  by  Circumstantial  Evidence    .        .    205  et  seq. 

CHAPTER  III. 

PROOF  OF  HANDWRITING. 

Section  I. 

Proof  by  Dire-ct  Evidence. 

Usual  Mode  by  Direct  Evidence 3IO 

Who  may  Testify  to  Handwriting 210 

Section  II. 
Proof  by  Indirect  Evidence. 

Proof  by  Comparison 213 

The  Former  Rule  as  to  Comparison 214 

The  Former  Rule  and  the  Exceptions  thereto 215 

The  Rule  in  the  various  States 216  et  seq. 

Question  of  Admissibility  of  Standard  is  for  tlie  Court        ...        219 

Statutory  Changes 220 

Qautiqnary  Suggestions         ,        .       .       ,       ,       ,       .       ,    321  e^  seq. 


X  CONTENTS. 

Section  III. 
The  Reliability  of  Evidence  on  this  Subject. 

PAGE 

Evidence  as  to  Handwriting  is  Inconclusive 223 

The  Weight  of  Evidence  of  Skilled  Witnesses 225 

CHAPTER  IV. 

VERIFICATION  OF  DATES  AND  TIME. 

Internal  Evidence  of  Documents 237 

Difficulty  of  Measuring  Time 230 


PART  III. 

EXCULPATORY  PRESUMPTIONS  AND  CIRUMSTANTIAL 

EVIDENCE. 

CHAPTER  I. 

THE  PRESUMPTION  OF  INNOCENCE. 

Effect  of  Establishing  a  Prima  Facie  Case 233 

Extent  of  the  Presumption  234 

CHAPTER  II. 

THE  CREDIBILITY  OF  TESTIMONY. 

Jurors  Best  Judges  of  Testimony 237 

The  Presumption  of  Truth  extends  how  far 238 

CHAPTER  III. 

CONDUCT  OF  THE  COMPLAINING  PARTY  AS  GIVING  RISE  TO  THE  PRESUMPTION 

OF  INNOCENCE. 

The  Demeanor  of  One  Wronged 241 

Cautions  as  to  Accusations  of  Rape 242 

Caution  as  to  Accusations  of  Other  Crimes             243 

Motives  of  Complainant  Important 244 

CHAPTER  IV. 

THE  CONDUCT  OF  THE    ACCUSED  AS  RAISING  A  PRESUMPTION  OF  INNOCENCE. 

From  what  this  Presumption  may  arise 245 

As  to  Voluntary  Surrender  and  Absence  of  Indications  of  Fear   .        .    247 


CONTENTS.  xi 
CHAPTER  V. 

THE  EFFECT  OF  THE  ABSENCE  OF  APPARENT    MOTIVE  TO  COMMIT  THE  CRIME 

CHARGED. 

PAGE 

Absence  of  Motive  Immaterial  where  Proof  of  Guilt  is  Clear        .        .  249 

Absence  of  Motive  Strengthens  Presumption  of  Innocence       .        .  250 

CHAPTER  VI. 

DECLARATIONS  AND  THREATS  OF  THE  DECEASED. 

There  must  have  been  an  Overt  Act 253 

As  to  Uncommunicated  Threats  .        , 252 

These  are  admissible  when 254 

CHAPTER  VII. 

THE  EXPLANATION  OF  UNFAVORABLE  CIRCUMSTANCES. 

Appearances  are  Deceptive 256 

Fabrication  of  Circumstances  by  Accuser 258 

CHAPTER  VIII. 

EVIDENCE  OF  CHARACTER. 

Grood  Character  is  Important 259 

Benefit  of  Character  not  Restricted  to  Minor  Offences  .        .        .  260 

Value  of,  depends  on  Circumstances ^  263 

Negative  Testimony  may  support 264 

Character  is  Proved  by  Reputation 265 

Correct  Mode  of  Inquiry 265  et  seq. 

Defendant  as  a  Witness 268 

Time  to  which  applicable 270 

CHAPTER  IX. 

THE  DEFENCE  OF  ALIBI. 

Importance  of .  271 

Who  may  Judge  of  Weight  of  Evidence  as  to        .        .        .        .        .  272 

To  what  Period  must  apply 273 

As  to  Credibility  of  Evidence  as  to  .        , 274 

Defence  Easy  of  Fabrication 276 

Withholding  of  Obtainable  Proof 37€ 

Effect  of  Presorting  to  Alibi  Fraudulently 277 


xii  CONTENTS. 

PAET  IV. 

RULES  OF  INDUCTION   SPECIALLY   TO  BE  OBSERVED 
IN   CASES   OF  CIRCUMSTANTIAL  EVIDENCE. 

INTRODUCTORY  REMARKS. 

CHAPTER  I. 

PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE. 

PAGE 

This  Rule  is  Indispensable 280 

Immaterial  Facts  need  not  be  Established 282 

Illustrations 283  et  seq. 

CHAPTER  II. 

THE  BURDEN  OF  PROOF. 

It  is  on  the  Party  Asserting  Existence  of  a  Fact. 

A  Universal  Rule 291 

Origin  of  the  Rule 291 

Burden  of  Establishing  Guilt  is  on  Prosecution 293 

Rurden  of  Establishing  a  Defence  is  on  Defendant      ....      295 

CHAPTER  III. 

THE  BEST  EVIDENCE  MUST  BE  ADDUCED. 

Object  of  the  Rule 297 

As  to  Proof  of  Corpus  Delicti 297 

Where  Non-consent  is  an  Ingredient 298 

The  Eflfect  of  Lapse  of  Time  upon  Evidence 299 

CHAPTER  IV. 

THE  QUANTITY  OF  EVIDENCE   NECESSARY  TO  CONVICT. 

Section  I. 

The  Facts  must  be  Incompatible  with  Innocence. 

This  is  a  Fundamental  Rule 300 

Not  Necessary  to  Exclude  every  Hypothesis  but  Guilt         .        .        .      300 
Circumstances  must  Exclude  to  a  Moral  Certainty  every  one  but  Guilt.  301 

True  Test  of  Sufficiency 302 

Moral  Certainty  Defined 3O3 

Evidence  need  not  equal  Testimony  of  one  Witness        ....  306 


CONTENTS.  Xiii 

PAGB 

"  Absolute  Moral  Certainty  "  Disapproved 306 

Guilt  beyond  a  Reasonable  Doubt 307 

As  to  the  Words  of  a  Charge  on  this  Subject 310 

Amount  of  Proof  needed  to  Establish  Alibi 315 

Different  Rules  as  to 315 

Amount  of  Proof  needed  to  Establish  Insanity 319 

Section  II. 

If  the  Evidence  fails  to  Attain  the  Required  Standard  an  Acquittal  must 

Follow. 

A  Consequence  of  the  Preceding  Rule 321 

Difference  between  Civil  and  Criminal  Cases 333 

As  to  Probability  of  Innocence 334 

What  is  a  Reasonable  Doubt 335  et  seq. 

Rules  of  Evidence  same  in  Civil  as  in  Criminal  Cases      ....  338 
As  to  Civil  Cases  where  a  Crime  is  Imputed         .....      340 


PART  V. 

PROOF  OF  THE  CORPUS  DELICTI. 
DIVISION  I. 

GENERAL   PRINCIPLES. 

CHAPTER  I. 
GENERAL  DOCTRINE  AS  TO  THE  PROOF  OF  THE  CORPUS  DEUCTI. 

What  is  Meant  by  Corpus  Delicti 345 

In  Various  Offences -        .        .  345  et  aeq. 

CHAPTER  II. 

PROOF  OP  THE  CORPUS  DEUCTI  BY  CIRCUMSTANTIAL    EVIDENCE. 

No  one  Kind  of  Evidence  can  be  Demanded 354 

What  is  Essential 354 

Ulustratious 355  et  seq. 


Xiv  CONTENTS. 


DIVISION  II. 

APPLICATION   OF  THE   GENERAL  PRINCIPLE  TO  PROOF   OF 
THE  CORPUS  DELICTI   IN   CASES   OF   HOMICIDE. 

CHAPTER  I. 
THE  DISCOVERY  OP  THE  BODY. 

PACTS 

What  is  the  Corpus  Delicti  in  Murder 363 

Rule  in  Texas 363 

Discovery  of  Body  not  always  Required 365 

Death  may  be  Inferred  from  Circumstances 366 

CHAPTER  n. 

THE  IDENTIFCATION  OF  THE  BODY. 

Identification  necessary 870 

Identification  by  Direct  Evidence  not  Necessary         ....        374 
Illustrations 374  et  seq. 

CHAPTER  III. 

THE  CAUSE  OF  DEATH. 

The  True  Cause  must  clearly  Appear 379,  880 

The  True  Cause  may  be  Shown  by  Circumstantial  Evidence      .        .        381 
Illvistrations 381  et  seq. 


DIVISION  III. 

APPLICATION    OF   THE   GENERAL   PRINCIPLES   TO   PROOF   OF 
THE   CORPUS   DELICTI   IN   CASES    OF    POISONING. 

CHAPTER  I. 

THE  CAUSE  OF  DEATH. 

Who  may  Testify  as  to 384 

Characteristics  of  Poisons 385 

Corroborative  Circumstances 387 

Evidence  of  Chemical  Tests  .  388 

As  to  Post  Mortem  Imbibition 389 

Circumstantial  Evidence  sufficient  to  show  Cause  of  Death      .         .  393 


CONTENTS.  XV 

CHAPTER  II. 

THE  ADMINISTRATION  OF  THE  POISON. 

SeJction  I. 
Possession  of  Poison  by  the  Accused. 

PAQE 

This  is  au  Important  Fact 395 

lUustratious 395  et  seq. 

Section  II. 

Opportunity  must  be  Shrnvn, 

This  is  Indispensable 397 

Illustrations 397  et  seq. 

Effect  of  Proof  of  Former  Attempts 412 

CHAPTER  III. 

CASES  IN  illustration  OF  THE  FOREGOING  RULES. 

Illustrations 416  et  seq. 

DIVISION  IV. 

APPLICATION     OF    THE  GENERAL    PRINCIPLES   TO    PROOF     OF 
THE   CORPUS   DELICTI   IN   CASES   OF   INFANTICIDE. 

CHAPTER  I. 
PREGNANCY  MUST  BE  ESTABUSHED. 

Reason  of  this  Rule 447 

CHAPTER  II. 

THE  BIRTH  OP  A  LIVING  CHILD  MUST  BE  SHOWN. 

Child  must  have  had  an  Independent  Circulation      ....        449 
Whether  Child  was  Born  AUve  is  for  the  Jury       .....    450 

CHAPTER  III. 

THE  NATURE  OF  THE  MOTIVE. 

Various  Motives  may  Influence  this  Crime 453 

Various  Statutes  on  the  Concealment  of  Birth 454 


Xvi  CONTENTS. 


PART  VI. 

THE  FORCE  AND   EFFECT  OF   CIRCUMSTANTIAL 
EVIDENCE. 

CHAPTER  I. 

GENERAL  GROUNDS  OF  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

PAQE 

Faith  in  Moral  Evidence  Grounded  on  what 456 

General  Observations 456  ^t  seq. 

As  to  Corroboration  of  Accomplice  Testimony 458 

The  Law  in  England 459 

The  Law  in  America 459  et  seq. 

When  there  is  a  Moral  Certainty  of  Guilt 461 

CHAPTER  II. 

CONSIDERATIONS  WHICH  AUGMENT  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 
IN  PARTICULAR   CASES. 

CHAPTER  III. 

THE  VALUE  OP  CIRCUMSTANTIAL  EVIDENCE. 

CHAPTER  IV. 

CASES  IN  ILLUSTRATION  OF  THE  FORCE  OF  CTRCUMSTANTIAL  EVIDENCE. 


PART  I. 

PRELIMINARY  CONSIDERATIONS. 


DIVISION  I. 

E^^DENCE  IN   GENERAL. 


CHAPTER  I. 

THE  NATURE  OF  EVmENCE. 

The  great  object  of  all  intellectual  research  is  the  discovery 
of  TRUTH,  which  is  either  objective  and  absolute,  in  which 
sense  it  is  synonymous  with  being  or  existence,  or  subjective 
AND  RELATIVE,  in  wMch  acccptatioii  it  expresses  the  conformity 
of  our  ideas  and  mental  convictions  vnth  the  nature  and  reality 
of  events  and  things. 

The  Judgment  is  that  faculty  of  the  mind  which  is  princi- 
pally concerned  in  the  investigation  and  acquisition  of  truth  ; 
and  its  exercise  is  the  intellectual  act  by  which  one  thing  is 
perceived  and  affirmed  of  another,  or  the  reverse. 

Every  conclusion  of  the  judgment,  whatever  may  be  its  sub- 
ject, is  the  result  of  evidence — a  word  which  (derived  from 
words  in  the  dead  languages  signifying  to  see,  to  know)  by  a 
natural  transition  is  applied  to  denote  the  means  by  which  any 
alleged  matter  of  fact,  the  truth  of  which  is  submitted  to  in- 
vestigation, is  established  or  disproved.^  Testimony  is  not 
synonymous  with  evidence  :  ^  the  latter  is  the  more  compre- 

1  1  Greenl.  on  Ev.  c.  i.  §  1,  That  which  is  legally  offered  by  the 
litigant  parties  to  induce  a  jury  to  decide  for  or  against  the  party  alleging 
such  facts  as,  contradistinguished  from  all  comment  and  argument  on  the 
subject,  fall  within  the  description  of  evidence.  Stark,  on  Ev.  (10th  Am. 
Ed.)  12. 

2  Harvey  v.  Smith,  17  Ind.  273. 

1 


2  THE  NATURE  OF  EVIDENCE. 

hensive  term.^  The  term  testimony,  ])roperly  applied,  signifies 
the  statement  made  by  a  witness  under  oath  or  aflftrmation ;  ^ 
while  evidence  includes  all  that  may  be  submitted  to  the  jury, 
whether  it  be  the  statement  of  witnesses  or  the  contents  of 
papers,  documents,  or  records,  or  the  inspection  of  whatever 
the  jury  may  be  permitted  to  examine  and  consider  during  the 
trial.^  By  the  California  Code  of  Civil  Procedure  judicial 
evidence  is  defined  as  the  means  sanctioned  by  law,  of  ascer- 
taining in  a  judicial  proceeding  the  truth  respecting  a  question 
of  fact.*  And  the  law  of  evidence  is  declared  to  be  a  collec- 
tion of  general  rules  established  by  law, — 

1.  For  declaring  what  is  to  be  taken  as  true  without  proof ; 

2.  For  declaring  the  presumptions  of  law,  both  those  which 
are  disputable  and  those  which  are  conclusive  ;  and, 

3.  For  the  production  of  legal  evidence ; 

4.  For  the  exclusion  of  whatever  is  not  legal ; 

5.  For  determining  in  certain  cases  the  value  and  effect  of 
evidence.^ 

The  rules  of  evidence  are  the  maxims  which  the  sagacity 
and  experience  of  ages  have  established  as  the  best  means 
of  discriminating  truth  from  error,  and  of  contracting  as 
far  as  possible  the  dangerous  power  of  judicial  discretion. 
They  have  their  origin  in  man's  nature,  as  an  intellectual 
and  a  moral  being ;  and  "  are  founded "  (to  use  the  lan- 
guage of  one  of  the  most  eloquent  of  advocates)  "  in  the  chari- 
ties of  religion,  in  the  philosophy  of  nature,  in  the  truths  of 

1  Whart.  Cr.  Law,  §  783. 

2  Bouvier's  Law  Diet.  (15th  Ed.)  vol.  ii,  p.  723,  tit.  "  Testimony." 

3  Jones  V.  Gregory,  48  111.  App.  280.  *  §  1823. 

5  §  1825.  The  means  which  the  law  employs  for  investigating 
the  truth  of  a  past  transaction  are  those  which  are  resorted  to  by 
mankind  for  similar,  but  extrajudicial  purposes.  With  these  general 
principles  the  law  can  interfere  in  two  ways  only ;  either  by  ex- 
cluding and  restraining  mere  natural  evidence  by  the  application 
of  artificial  tests  of  truth,  or  annexing  an  artificial  effect  to  evidence 
beyond  that  which  it  would  otherwise  possess.  Hence  it  is  that  the  great 
principles  of  evidence  maybe  reduced  to  three  classes,  comprising  :  1.  The 
principles  of  evidence  which  depend  on  ordinary  experience  and  natural 
reason,  independently  of  any  artificial  rules  of  law  ;  2.  The  artificial  prin- 
ciples of  law  which  operate  to  the  partial  exclusion  of  natural  evidence  by 
prescribing  tests  of  admissibility,  and  which  may  properly  be  called  the 
excluding  principles  of  law  ;  3.  The  principles  of  law  which  either  create 
artificial  modes  of  evidence  or  annex  an  artificial  effect  to  mere  natural 
evidence.    Stark.  Ev.  (10th  Am.  Ed.)  15. 


i 


THE  NATURE  OF  EVIDENCE.  3 

history,  and  in  the  experience  of  common  life."  ^  "  Rules  of 
e^ddence,"  said  Daniel  Webster,  "  are  rules  of  law,  and  their 
observance  can  no  more  be.  dispensed  with  than  any  other  rules 
of  law.  Whatever  may  be  imagined  to  the  contrary,  it  Avill 
commonly  be  found  that  a  disregard  of  the  ordinary  rules  of 
evidence  is  but  the  harbinger  of  injustice."  ^ 

The  term  proof  is  often  confounded  Avith  that  of  evidence, 
and  applied  to  denote  the  medium  of  proof,  whereas  in  strict- 
ness it  marks  merely  the  effect  of  evidence.^  When  the  result 
of  evidence  is  undoubting  assent  to  the  certainty  of  the  event 
or  proposition  which  is  the  subject-matter  of  inquiry,  such  event 
or  proposition  is  said  to  hepj'oved  ;  and,  according  to  the  nature 
of  the  evidence  on  which  such  conclusion  is  grounded,  it  is 
either  known  or  helieved  to  be  true.  Our  judgments,  then,  are 
the  consequence  of  proof ;  and  proof  is  that  quantity  of  appro- 
priate evidence  which  produces  assurance  and  certainty.  Evi- 
dence, therefore,  differs  from  proof,  as  cause  from  effect.* 

1  29  St.  Tr.  166. 

2  In  this  connection  some  remarks  of  the  learned  editor  of  the  late  edition 
of  Wilson's  Works  are  valuable.  In  the  note  to  the  chapter  on  The  Nature 
AND  Philosophy  op  Evidence,  p.  458,  he  says  :— "  The  law  of  evidence  is 
much  more  than  merely  a  part  of  the  law  of  procedure.  Many  of  its  iniles 
are  substantive  law  and  fall  within  the  provisions  of  the  constitution.  Kring 
V.  Mo.,  107  U.  S.  221.  The  rule  is  tliat  no  one  shall  be  condemned  or  dis- 
seized unheard,  and  by  a  hearing  is  meant  that  an  opportunity  shall  be 
given  to  produce  all  of  his  evidence  and  to  have  it  weighed  according  to  fixed 
principles  of  law.  This  benign  principle  pervades  every  department  of 
government  and  every  walk  of  life  ;  eveiy  right  which  the  law  recognizes 
as  within  its  protection  is  entitled  to  the  same  immunity." 

8  Whately,  Logic,  c.  iii.  ;  Schloss  v.  Creditors,  31  Cal.  203  ;  Perry  v. 
Dubuque  S.  W.  R.  Co.,  36  la.  106. 

*  Mr.  Justice  Wilson  has  designated  fourteen  distinct  sources  of  evidence  ; 
1.  The  external  senses.  2.  Consciousness.  3.  Taste.  4.  The  moral  sense. 
5.  Natural  signs.  6.  Artificial  signs.  7.  Human  testimony  in  matters  of 
fact.  8.  Human  authority  in  matters  of  opinion.  9.  Memory.  10. 
Experience.  11.  Analogy.  12.  Judgment.  13.  Reasoning.  14.  Calcu- 
lations concerning  chances.     Wilson's  Works,  pp.  467,  468. 


CHAPTER  II. 

THE  VARIOUS  KINDS   OF  EVIDENCE. 

Truth  is  either  abstract  and  necessary,  or  probable  and  con- 
tingent ;  and  each  of  these  kinds  of  truth  is  discoverable  by 
appropriate  but  necessarily  different  kinds  of  evidence.  This 
clasification,  however,  is  not  founded  in  any  essential  difference 
in  the  nature  of  truths  themselves,  and  has  reference  merely  to 
our  imperfect  capacity  and  ability  of  perceiving  them  ;  since 
to  an  Infinite  Intelligence  nothing  which  is  the  object  of  knowl- 
edge can  be  probable,  and  everything  must  be  perceived  abso- 
lutely and  really  as  it  is.^ 

In  many  instances  the  correspondence  of  our  ideas  with 
realities  is  perceived  instantaneously,  and  without  any  conscious 
intermediate  process  of  reasoning,  in  which  cases  the  judgment 
is  said  to  be  intuitive,  from  a  word  signifying  to  look  at ;  and 
the  e\ddence  on  which  it  is  founded  is  also  denominated  intui- 
tive ;  though  it  would  perhaps  be  more  correct  to  use  that  word 
as  descriptive  of  the  nature  of  the  mental  operation,  rather 
than  of  the  kind  of  evidence  on  which  it  rests. 

Intuition  is  the  foundation  of  demonstration,  which  consists 
of  a  series  of  steps  severally  resolvable  into  some  intuitive  truth. 
Demonstration  concerns  only  necessary  and  immutable  truth ; 
and  its  first  principles  are  definitions,  which  exclude  all  ambi- 
guities of  language,  and  lead  to  infallibly  certain  conclusions.^ 

But  the  subjects  which  admit  of  the  certainty  of  intuition 
and  demonstration  are  comparatively  few.  Innumerable  truths, 
the  knowledge  of  which  is  indispensable  to  happiness,  if  not  to 
existence,  depend  upon  evidence  of  a  totally  different  kind,  and 
admit  of  no  other  guide  than  our  own  observation  and  experi- 
ence, or  the  testimony  of  our  f  eUow-men.  Such  truths  involve 
questions  of  fact  or  of  actual  existence,  which,  as  they  are  not 
of  a  necessary  nature,  may  or  may  not  have  existed,  without 

1  Butler's  Analogy,  Introduction. 

2  2  Stewart's  Elements  of  the  Philosophy  of  the  Human  mind,  c.  ii.  §  3. 

4 


THE  VARIOUS  KINDS  OF  EVIDENCE.  5 

involving  any  contradiction,  and  as  to  which  our  reasonings 
and  deductions  may  be  erroneous.  Such  evidence  is  called 
MORAL  EVIDENCE ;  probably  because  its  principal  application  is 
to  subjects  directly  or  remotely  connected  with  moral  conduct 
and  relations.* 

Of  the  various  kinds  of  moral  evidence,  that  of  testimony  is 
the  most  comprehensive  and  important  in  its  relation  to  human 
concerns  ;  so  extensive  is  its  application,  that  to  enter  on  the 
subject  of  testimony  at  large  would  be  to  treat  of  the  conduct 
of  the  understanding  in  relation  to  the  greater  portion  of 
human  affairs. 

The  design  of  this  work  is  limited  to  the  consideration  of 
some  of  the  principal  rules  and  doctrines  peculiar  to  circum- 
stantial e^^dence  as  applicable  to  criminal  jurisprudence,  one 
of  the  leading  heads  under  which  philosophical  and  juridical 
Avriters  consider  the  subject  of  testimonial  evidence.  Nor  is  it 
proposed  to  treat,  except  cursorily  and  incidentally,  of  documen- 
tary circumstantial  e^ddence ;  a  subject  which,  however  inter- 
esting in  itself,  is  applicable  principally  to  discussions  upon  the 
genuineness  of  historical  and  other  writings ;  and  such  cases  of 
this  description  as  occasionally  happen  in  the  concerns  of  com- 
mon life  are  referable  to  general  principles,  which  equall}' 
apply  to  circumstantial  evidence  of  every  kind. 

Considering  how  many  of  our  most  momentous  determina- 
tions are  grounded  upon  circumstantial  evidence,  and  how  im 
portant  it  is  that  they  should  be  correctly  formed,  the  subject 
is  one  of  deep  interest  and  moment.  It  would  be  most  erron- 
eous to  conclude  that,  because  it  is  illustrated  principally  by 
forensic  occurrences,  it  especially  concerns  the  business  of  the 
members  of  a  particular  profession.  Such  events  are  amongst 
the  most  interesting  occurrences  of  social  life  ;  the  suhject  relates 
to  an  intellectual  process,  called  into  exercise  in  almost  every 
branch  of  human  speculation  and  research. 

1  "Truths  alone"  (say  the  civilians)  "  which  depend  on  abstract  prin 
ciples  are  susceptible  of  demonstrative  evidence  ;  truths  that  depend  oi^ 
matters  of  fact,  however  complete  naay  be  the  evidence  by  which  they  are 
established,  can  never  become  demonstrative.  ...  In  demonstrative  evi- 
dence there  are  no  degrees  :  one  demonstration  may  be  more  easily  com- 
prehended ;  but  it  cannot  be  stronger  than  other.  Every  necessary  truth 
leaves  no  possibility  of  its  being  false.  In  moral  evidence  we  rise  by  an  in* 
sensible  gradation,  from  possibility  to  probability,  and  from  probability  to 
ihe  highest  degree  of  moral  certainty."    Wilson's  Works,  pp.  498,  499. 


CHAPTER  III. 

NATURE  OP  THE  ASSURANCE    PRODUCED  BY  DIFFERENT   KINDS 

OF  EVIDENCE. 

In  investigations  of  every  kind  it  is  essential  that  the  correct 
estimate  be  made  of  the  kind  and  degree  of  assurance  of  which 
the  subject  admits. 

Since  the  evidence  of  demonstration  relates  to  necessary 
truths  (as  to  which  the  supposition  of  the  contrary  involves  not 
merely  what  is  not  and  cannot  be  true,  but  what  is  also  absurd), 
and  since  moral  evidence  is  the  basis  of  contingent  or  probable 
truth  merely,  it  follows  that  the  convictions  Avhich  these  vari- 
ous kinds  of  evidence  are  calculated  to  produce  must  be  of  very 
different  natures.  In  the  former  case  absolute  certitude  is  the 
result ;  to  Avhich  moral  certainty,  the  highest  degree  of  assur- 
ance of  which  truths  of  the  latter  class  admit,  is  necessarily 
inferior. 

Unlike  the  assent,  which  is  the  inevitable  result  of  mathe- 
matical reasoning,  belief  in  the  truth  of  events  may  be  of  vari- 
ous degrees,  from  moral  certainty,  the  highest,  to  that  of  mere 
probability,  the  lowest ;  between  which  extremes  there  are  in- 
numerable degrees  and  shades  of  conviction,  which  the  latency 
of  mental  operations  and  the  unavoidable  imperfections  of  lan- 
guage render  it  impossible  to  define  or  express.  In  subjects 
of  moral  science  the  want  of  appropriate  words,  and  the  occa- 
sional application  of  the  same  word  to  denote  different  things, 
have  given  occasion  to  much  obscurity  and  confusion,  both  of 
idea  and  expression ;  of  which  a  remarkable  exemplification  is 
presented  in  the  words  probability  and  certainty. 

The  general  meaning  of  the  word  probability  is  likeness  or 
similarity  to  some  other  truth,  event,  or  thing,  ^  Sometimes  the 
word  probability  is  used  to  express  the  preponderance  of  the 

^  Butler's  Analogy,  ut  supra ;  Locke's  Essay  Concerning  Human  Under- 
standing, b.  iv.  c.  XV.  ;  Cic.  De  Inventione,  c.  47. 

6 


ASSURANCE  BY  DIFFERENT  KINDS  OF  EVIDENCE.  7 

evidence  or  arguments  in  favor  of  the  existence  of  a  particular 
event  or  proposition,  or  adverse  to  it ;  and  sometimes  as  as- 
sertive of  the  abstract  and  intrinsic  credibility  of  a  fact  or 
event. 

In  its  former  sense  the  word  probability  is  applied  as  well  to 
certain  mathematical  subjects  as  to  questions  dependent  upon 
moral  evidence,  and  expresses  the  ratio  of  the  favorable  cases 
to  all  the  possible  cases  by  which  an  event  may  happen  or  fail ; 
and  it  is  represented  by  a  fraction,  the  numerator  of  which  is 
the  sum  of  the  favorable  cases,  and  the  denominator  the  whole 
number  of  possible  cases,  certainty  being  represented  by  unity. 
If  the  number  of  chances  for  the  happening  of  the  event  be=0, 
and  the  event  be  consequently  impossible,  the  expression  for 
that  chance  will  be=0  ;  and  so,  if  the  number  of  chances  of 
the  failure  of  the  event  be=0,  and  the  event  be  therefore  cer- 
tain, the  expression  for  the  chance  of  failure  will  also  be^=0. 
If  77i-\-n  be  the  whole  number  of  cases,  771  the  favorable,  and  n 
the  unfavorable  ones,  the  probability  of  the  event  is  m :  ?/«.-f-;i. 
It  follows  that  if  there  be  an  equality  of  chances  for  the  happen- 
ing or  the  failing  of  an  event,  the  fraction  expressive  of  the 
probability  is==i,  the  mean  between  certainty  and  impossibil- 
ity ;  ^  and  probability,  therefore,  includes  the  whole  range 
between  those  extremes. 

The  terms  certainty  and  probability  are,  however,  essen- 
tially different  in  meaning  as  applied  to  moral  evidence,  from 
what  they  import  in  a  mathematical  sense  ;  inasmuch  as  the  ele- 
ments of  moral  certainty  and  moral  probability,  notwithstand- 
ing the  ingenious  arguments  which  have  been  urged  to  the 
contrary,  appear  to  be  incapable  of  numerical  expression,  and 
because  it  is  not  possible  to  assign  all  the  chances  for  or 
against  the  occurrence  of  any  particular  event. 

The  expression  moral  probability,  though  liable  to  objection 
on  account  of  its  deficiency  in  precision,  is,  for  want  of  one 
more  definite  and  appropriate,  of  frequent  and  necessary  use ; 
nor  ^vill  its  application  lead  to  mistake,  if  it  be  remembered 
that  it  denotes  only  the  preponderance  of  probability,  resulting 
from  the  comparison  and  estimate  of  moral  evidence,  and  that 
if  this  were  capable  of  being  expressed  with  exactness,  it  would 
lose  its  essential  characteristic  and  possess  the  certainty  of 
demonstration. 

1  Kirwan's  Logic,  part  iii.  c.  vii.  §  1. 


8  NATURE  OF  THE  ASSURANCE  PRODUCED 

The  preceding  strictures  equally  apply  to  the  term  moral  cer- 
tainty, or  its  equivalent,  moral  conviction,  which  must  be 
understood,  not  as  importing  deficiency  in  the  proof,  but  only 
as  descriptive  of  the  kind  of  certainty  which  is  attainable  by 
means  of  moral  evidence ;  and  it  is  that  full  and  complete  assur- 
ance which  admits  of  no  degrees,  and  induces  a  sound  mind  to 
act  without  doubt  upon  the  conclusions  to  which  it  naturally 
and  reasonably  leads.^ 

It  has  been  justly  and  powerfully  remarked  that  "  the  degree 
of  excellence  and  of  strength  to  which  testimony  may  rise 
seems  almost  indefinite.  There  is  hardly  any  cogency  which 
it  is  not  capable,  by  possible  supposition,  of  attaining.  The 
endless  multiplication  of  witnesses,  the  unbounded  variety  of 
their  habits  of  thinking,  their  prejudices,  their  interests,  afford 
the  means  of  concei^dng  the  force  of  their  testimony  augmented 
ad  injinitum^  because  these  circumstances  afford  the  means  of 
diminishing  indefinitely  the  chances  of  their  being  all  mistaken, 
all  misled,  or  all  combining  to  deceive  us."  ^  But  if  evidence 
leave  reasonable  ground  for  doubt,  the  conclusion  cannot  be 
morally  certain,  however  great  may  be  the  preponderance  of 
probability  in  its  favor. 

Some  mathematical  Avriters  have  propounded  numerical  frac- 
tions for  expressing  moral  certainty ;  which,  as  might  have 
been  expected,  have  been  of  very  different  values.  But  the 
nature  of  the  subject  precludes  the  possibility  of  reducing  to 
the  form  of  arithmetical  notation  the  subtle,  shifting,  and 
evanescent  elements  of  moral  assurance,  or  of  bringing  to 
quantitive  comparison  things  so  inherently  different  as  certainty 
and  probability.  The  attempt  to  reduce  circumstantial  evidence 
into  arithmetical  proportions  is  merely  fanciful,  and  no  rules  of 
that  kind  have  been  settled  by  any  adjudged  case.^ 

Other  writers  have  given,  in  a  more  general  manner,  mathe- 
matical form  to  moral  reasonings  and  judgments ;  but  it  is 
questionable  if  they  have  done  so  with  any  useful  result,  how- 
ever they  may  have  shown  their  own  ingenuity.*  Though  it  is 
true  that  some  very  important  deductions  from  the  doctrine  of 

1  2  Stewart's  Elements,  c.  ii.  §  4  ;  Encyclopaedia  Brit.,  art.  Metaphysics, 
part  i. 

2  Lord  Brougham's  Disc,  on  Natural  Theology,  251. 

3  State  V.  Roe,  13  Vt.  93  ;  Wilson's  Works,  226.     See  infra,  p.  14,  n-  2. 

*  Kirwan's  Logic,  part  iii.  c.  vii.  §  21 ;   Whately's   Logic,  b.  iv.  c.   iL 
§1. 


BY  DIFFERENT  KINDS  OF  EVIDENCE.  9 

chances  are  applicable  to  events  dependent  upon  the  duration 
of  human  life,  such  as  the  expectation  and  the  decrement  of  life, 
the  law  of  mortality,  the  value  of  annuities,  and  other  contin- 
gencies, and  also  to  reasoning  in  the  abstract  upon  particular 
cases  of  testimonial  evidence,  yet  it  is  obvious  that  all  such  con- 
clusions depend  upon  circumstances,  which,  not^vithstanding 
that  to  the  unreflecting  observer  they  appear  casual,  uncertain, 
and  irreducible  to  princij)le,  unlike  moral  facts  and  reasonings 
in  general,  are  really  based  upon  and  deducible  from  numerical 
elements. 

A  learned  writer,  whose  writings,  in  despite  of  his  eccentrici- 
ties of  matter  and  of  style,  have  exercised  great  influence  in 
awakening  the  spirit  of  judicial  reformation,  asks,^ "  Does  justice 
require  less  precision  than  chemistry  ? "  The  truth  is  that  the 
precision  attainable  in  the  one  case  is  of  a  nature  of  which  the 
other  does  not  admit.  It  would  be  absurd  to  require  the  proof 
of  an  historic  event  by  the  same  kind  of  evidence  and  reason- 
ing as  that  which  establishes  the  equality  of  triangles  upon 
equal  bases,  and  between  the  same  parallels,  or  that  the  latus 
rectum  in  an  ellipse  is  a  third  proportional  to  the  major  and 
minor  axes. 

This  conscript  father  of  legal  reforms  ^  has  himself  supplied  a 
memorable  illustration  of  the  futility  of  his  own  inquiry.  He 
has  proposed  a  scale  for  measuring  the  degrees,  of  belief,  with 
a  positive  and  negative  side,  each  divided  into  ten  degrees, 
respectively  affirming  and  denying  the  same  fact,  zero  denoting 
the  absence  of  belief ;  and  the  witness  is  to  be  asked  what 
degree  expresses  his  belief  most  correctly.  With  characteristic 
ardor,  the  venerable  author  gravely  argues  that  this  instru- 
ment could  be  employed  without  confusion,  difficulty,  or  in- 
convenience.^ But  MAN  must  become  wiser  and  better  before 
the  mass  of  his  species  can  be  entrusted  with  the  use  of  such  a 
moral  gauge,  from  which  the  unassuming  and  the  wise  would 
shrink,  while  it  would  be  eagerly  grasped  by  the  conceited,  the 
interested,  and  the  bold. 

1  Bentham's  Traite  des  Preuves  Judiciairies,  b.  i.  c.  xvii. ;  Mackintosh's 
Discourse  on  the  Progress  of  Ethical  Philosophy,  290. 

2  Hoffman's  Course  of  Legal  Study,  364. 

3  Bentham's  Rationale  of  Judicial  Ev.  b.  i.  c.  vi.  §  1,  and  see  in 
Kirwan's  Logic,  part  iii.  c.  vii.  §  21,  a  proposed  scale  of  testimonial 
probability. 


10        NATURE  OF  THE  ASSURANCE  PRODUCED 

But  though  a  process  strictly  mathematical  cannot  be  ap- 
plied to  estimate  the  effect  of  moral  evidence,  a  proceeding 
somewhat  analogous  is  observed  in  the  examination  of  a  group 
of  facts  adduced  as  grounds  for  inferring  the  existence  of  some 
other  fact.  Although  an  exact  value  cannot  be  assigned  to  the 
testimonial  evidence  for  or  against  a  matter  of  disputed  fact, 
the  separate  testimony  of  each  of  the  witnesses  has  nevertheless 
a  determinate  relative  value,  depending  upon  considerations 
which  it  would  be  foreign  to  the  present  subject  to  enumerate. 
On  one  side  of  the  equation  are  mentally  collected  all  the 
facts  and  circumstances  which  have  an  affirmative  value;  and 
on  the  other,  all  those  which  either  lead  to  an  opposite  infer- 
CDce,  or  tend  to  diminish  the  weight,  or  to  show  the  non- 
relevancy,  of  all  or  any  of  the  circumstances  which  have  been 
put  into  the  opposite  scale.  The  value  of  each  separate  portion 
of  the  evidence  is  separately  estimated,  and,  as  in  algebraic 
addition,  the  opposite  quantities,  positive  and  negative,  are 
united,  and  the  halance  of  probabilities  is  what  remains  as  the 
ground  of  human  belief  and  judgment. 

But,  as  has  been  already  intimated,  there  is  another  sense  in 
which  the  word  probability  is  often  used,  and  in  which  it  de- 
notes CEEDIBILITY  Or  INTERNAL   PROBABILITY,  and    CXprCSSeS   OUr 

judgment  of  the  accordance  or  similarity  of  events  with  which 
we  become  acquainted,  through  the  medium  of  testimony,  with 
facts  previously  known  by  experience.^ 

The  results  of  experience  are,  expressly  or  impliedly, 
assumed  as  the  standard  of  credibility  in  all  questions  depend- 
ent upon  moral  evidence.  By  means  of  the  senses  and  of  our  own 
consciousness  we  become  acquainted  with  external  nature,  and 
with  the  characteristics  and  properties  of  physical  things  and 
moral  beings,  which  are  then  made  the  subjects  of  memory, 
reflection,  and  other  intellectual  operations ;  and  thus  ulti- 
mately the  mind  is  led  to  the  recognition  of  the  principle  of 
causality  and  other  necessary  truths,  which  become  the  basis 
and  standard  of  comparison  in  similar  and  analogous  circum- 
stances. The  groundwork  of  our  reasoning  is  an  instinctive 
and  inevitable  belief  in  the  truthfulness  and  legitimacy  of  our 
own  faculties  and  in  the  permanence  of  the  order  of  external 
nature,  as  also  in  the  existence  of  moral  causes,  which  operate 
with  an  unvarying  uniformity,  not  inferior  to,  and,  perhaps, 

1  Abercrombie  on  the  Intellectual  Powers,  part  ii.  §  3. 


BY  DIFFERENT  KINDS  OF  EVIDENCE.  H 

surpassing  even,  the  stability  of  physical  laws ;  though,  rela- 
tively to  our  feeble  and  limited  powers  of  observation  and  com- 
prehension, and  on  account  of  the  latency,  subtlety,  and  fugi- 
tiveness  of  mental  operations,  and  of  the  infinite  diversities  of 
individual  men,  there  is  apparently  more  of  uncertainty  and 
confusion  in  moral  than  in  material  phenomena.^ 

Experience  comprehends  not  merely  the  facts  and  deductions 
of  personal  observation,  but  the  observations  of  mankind  at 
large  of  every  age  and  country.  It  would  be  absurd  to  dis- 
believe and  reject  as  incredible  the  relations  of  events  because 
such  events  have  not  occurred  within  the  range  of  individual 
experience.  We  may  remember  the  unreasonable  incredulity 
of  the  King  of  Siam,  who,  when  the  Dutch  ambassador  told 
him  that  in  his  country  the  water  in  cold  weather  became  so 
hard  that  men  Avalked  upon  it,  and  that  it  would  even  bear  an 
elephant,  replied,  "  Hitherto  I  have  believed  the  strange  things 
you  have  told  me,  because  I  look  upon  you  as  a  sober,  fair  man, 
but  now  I  am  sure  you  lie."  ^ 

By  experience,  facts  or  events  of  the  same  character  are 
referred  to  causes  of  the  same  kind ;  by  analogy,  facts  and 
events  similar  in  some  but  not  in  all  of  their  particulars  to  other 
facts  and  occurrences,  are  concluded  to  have  been  produced  by 
a  similar  cause :  so  that  analogy  vastly  exceeds  in  its  range 
the  limits  of  experience  in  its  widest  latitude,  though  their 
boundaries  may  sometimes  be  coincident,  and  sometimes  un- 
distinguishable.  It  has  been  profoundly  remarked  that  "  in 
Avhatever  manner  the  province  of  experience,  strictly  so  called, 
comes  to  be  thus  enlarged,  it  is  perfectly  manifest  that,  with- 
out some  such  provision  for  this  purpose,  the  principles  of  our 
constitution  would  not  have  been  duly  adjusted  to  the  scene 
in  which  we  have  to  act.  Were  we  not  so  formed  as  eagerly 
to  seize  the  resembling  features  of  different  things  and  different 
events,  and  to  extend  our  conclusions  from  the  individual 
to  the  species,  life  would  elapse  before  we  had  acquired  the 
first  rudiments  of  that  knowledge  which  is  essential  to  our 
animal  existence.^     Every  branch  of  knowledge  presents  in- 

1  Hampden's  Lectures  on  Moral  Philosophy,  150  ;  Abercrombie's  Philos- 
ophy of  the  Moral  Feelings,  Prelim.  Obs.,  §  ii. 

2  Locke  on  the  Human  Understanding,  b.  iv.  c.  xv.  §  5.  See  also  Stark, 
on  Ev.  (10th  Am.  Ed.)  833. 

8  2  Stewart's  Elements,  ut  supra,  c.  ii.  §  iv. 


12  NATURE  OF  THE  ASSURANCE  PRODUCED 

structive  examples  of  the  extent  to  which  this  mode  of  reason- 
ing may  be  securely  carried.  Newton,  from  having  observed 
that  the  refractive  forces  of  different  bodies  follow  the  ratio 
of  their  densities,  was  led  to  predict  the  combustibility  of  the 
diamond  ages  before  the  mechanical  aids  of  science  were 
capable  of  verifying  his  prediction ;  nor  is  the  sagacity  of  the 
conjecture  the  less  striking,  because  this  correspondence  has 
been  discovered  not  to  be  without  exception.  The  scientific 
observer,  from  the  inspection  of  shapeless  fragments,  which 
have  moldered  under  the  suns  and  storms  of  ages,  constructs 
a  model  of  the  original  in  its  primitive  magnificence  and 
symmetry.  A  profound  knowledge  of  comparative  anatomy 
enabled  the  immortal  Cuvier,  from  a  single  fossil  bone,  to 
describe  the  structure  and  habits  of  many  of  the  extinct  animals 
of  the  antediluvian  world.  In  like  manner  an  enlightened 
knowledge  of  human  nature  often  enables  us,  on  the  founda- 
tion of  apparently  slight  circumstances,  to  follow  the  tortuous 
windings  of  crime,  and  ultimately  to  discover  its  guilty  author, 
as  infallibly  as  the  hunter  is  conducted  by  the  track  to  his 
game. 

The  following  pertinent  and  instructive  observations  may 
advantageously  close  this  part  of  our  subject,  comprehending, 
as  they  do,  everything  which  can  be  usefully  adduced  in  illus- 
tration of  the  necessity  and  value  of  the  principle  of  analogy : 
"  In  all  reasonings  concerning  human  life  we  are  obliged  to 
depend  on  analogy,  if  it  Avere  only  from  that  uncertainty,  and 
almost  suspension  of  judgment,  with  which  we  must  hold  our 
conclusions.  We  can  seldom  obtain  that  number  of  instances 
w^hich  is  requisite  here  to  establish  an  inference  indisputably. 
The  conduct  of  persons  or  of  parties  may  have  been  attended  by 
certain  antecedents  and  certain  results  in  the  examples  before 
us  ;  still  the  state  of  the  case  may  be  owing  not  so  much  to 
that  conduct,  as  to  other  causes,  which  are  shut  out  of  our 
view,  when  our  attention  is  fixed  on  the  particular  examples 
adduced  for  the  purpose  of  the  inference.  "We  must  thus  be 
strictly  on  our  guard  against  transferring  to  other  cases  any- 
thing merely  contingent  and  peculiar  to  the  instances  on  which 
our  reasoning  is  founded.  And  this  is  what  analogical  reason- 
ing requires  and  enables  us  to  do.  If  rightly  pursued  it  is  em- 
ployed at  once  both  in  generalizing  and  discriminating ;  in  the 
acute  perception  at  once  of  points  of  agreement  and  points  of 


BY  DIFFERENT  KINDS  OF  EVIDENCE.  13 

difference.  The  acme  of  the  philosophical  power  is  displayed 
in  the  perfect  co-operation  of  these  two  opposite  proceedings. 
"VVe  must  study  to  combine  in  such  a  way  as  not  to  merge  real 
differences ;  and  so  to  distinguish  as  not  to  divert  the  eye  from 
the  real  correspondence.'"  ^ 

It  may  be  objected,  that  the  minds  of  men  are  so  differently 
constituted,  and  so  much  influenced  by  differences  of  experience 
and  culture,  that  the  same  evidence  may  produce  in  different 
individuals  very  different  degrees  of  belief ;  that  one  man  may 
unhesitatingly  believe  an  alleged  fact,  upon  evidence  which 
will  not  in  any  degree  sway  the  mind  of  another.  It  must  be 
admitted  that  moral  certainty  is  not  the  same  fixed  and  unvary- 
ing standard,  alike  in  every  individual ;  that  scepticism  and 
credulity  are  modifications  of  the  same  principle,  and  that 
to  a  certain  extent  this  objection  is  gi'ounded  in  fact ;  but  never- 
theless, the  psychological  considerations  which  it  involves  have 
but  little  alhance  with  the  present  subject ;  the  argument,  if 
pushed  to  its  extreme,  would  go  to  introduce  universal  doubt 
and  distrust,  and  to  destroy  all  confidence  in  human  judgment 
founded  upon  moral  evidence.  It  is  as  impossible  to  reduce 
men's  minds  to  the  same  standard,  as  it  is  to  bring  their  bodies 
to  the  same  dimensions  ;  but  in  the  one  case,  as  well  as  in  the 
other,  there  is  a  general  agreement  and  similarity,  any  wide 
departure  from  which  is  instantly  perceived  to  be  eccentric 
and  extra^'agant.  The  question  is,  not  what  may  be  the  ^jfo.s- 
sihle  effect  of  e^adence  upon  minds  peculiarly  constructed,  but 
what  ought  to  be  its  fair  result  with  men,  such  as  the  gener- 
ality of  civilized  men  are. 

It  is  of  no  moment  in  relation  to  criminal  jurisprudence, 
that  exact  expression  cannot  be  given  to  the  inferior  degrees 
of  belief.  The  doctrine  of  chances,  and  nice  calculations  of 
probabilities,  cannot,  except  in  a  few  cases,  and  then  only  in  a 
very  general  and  abstract  way,  be  applied  to  human  actions, 
which  are  essentially  unlike,  and  dependent  upon  peculiarities 
of  persons  and  circumstances  which  render  it  impossible  to  as- 
sign to  them  a  precise  value,  or  to  compare  them  mth  a  com- 
mon numeral  standard  ;  nor  are  they  capable  in  any  degree, 
or  under  any  circumstances,  of  being  applied  to  actions  which 
infer  legal  responsibility^  In  the  common  affairs  of  life  men 
are  frequently  obliged,  from  necessity  and  duty,  to  act  upon 
1  Hampden's  Lectures,  ut  supra,  178. 


14         ASSURANCE  BY  DIFFERENT  KINDS  OF  EVIDENCE. 

the  lowest  degree  of  belief  ;  and,  as  Mr.  Locke  justly  observes, 
"  lie  that  will  not  stir  till  he  infallibly  knows  the  business  he 
goes  about  will  succeed,  will  have  little  else  to  do  but  to  sit 
still  and  perish."  ^  But  in  such  cases  our  judgments  commonly 
concern  ourselves,  and  our  own  motives,  duties,  and  interests ; 
while  in  the  administration  of  penal  justice  the  magistrate  is 
called  upon  to  apply  to  the  conduct  of  others  a  rule  of  action 
applicable  to  a  given  state  of  facts,  where  external  and  some- 
times ambiguous  indicia  alone  constitute  the  grounds  of  judg- 
ment. In  the  application  of  every  such  rule,  the  certainty  of 
the  facts  is  presupposed,  and  is  its  only  foundation  and  vindi- 
cation ;  and  upon  any  lower  degree  of  assurance,  its  application 
would  be  arbitrary  and  indefensible.^ 

1  Essay  on  the  Human  Understanding,  bk.  iv.  c.  xiv.  §  1. 

2  "Concerning  circumstantial  proofs,"  says  Mr.  Justice  Wilson,  "rules, 
unsatisfactory,  because  unfounded,  have  been  heaped  upon  rules,  volumes 
have  been  heaped  upon  volumes,  and  evidence  has  been  added,  and 
divided,  and  subtracted,  and  multiplied,  like  pounds,  and  shillings,  and 
pence,  and  farthings.  In  the  parliament  of  Toulouse,  we  are  told  by  Vol- 
taire, they  admitted  of  quarters  and  eighths  of  a  proof.  For  instance,  one 
hearsay  was  considered  as  a  quarter  ;  another  hearsay  more  vague,  as  an 
eighth  ;  so  that  eight  vague  hearsays,  which,  in  fact,  are  no  more  tlian  the 
reverberated  echoes  of  a  report,  perhaps  originally  groundless,  constitute  a 
full  proof.  Upon  this  principle  it  was  that  poor  Calas  was  condemned  to 
the  wheel. 

"  Evidence  is  that  which  pi-oduces  belief.  Belief  is  a  simple  act  of  the 
mind  more  easily  experienced  than  described.  Its  degrees  of  strength  or 
weakness  cannot,  like  those  of  heat  and  cold,  be  ascertained  by  the  precise 
scale  of  an  artificial  thermometer.  Their  effects,  however,  are  naturally 
felt  and  distinguished  by  a  sound  and  heathf ul  mind.  With  great  propriety, 
therefore,  the  common  law  forbears  to  attempt  a  scale  or  system  of  rules 
concerning  the  force  or  credibility  of  evidence  :  it  wisely  leaves  them  to 
the  unbiased  and  unadulterated  sentiments  and  impi'essions  of  the  jury," 
Wilson's  Works,  vol.  ii.  225,  226. 


DIVISION  II. 

CIRCUMSTANTIAL  EVIDENCE. 


CHAPTER  I. 

THE  CHARACTERISTICS  OF  CIRCUMSTANTIAL  EVIDENCE. 

On  a  superficial  view,  direct  and  indirect,  or  circumstantial, 
would  appear  to  be  distinct  species  of  evidence ;  whereas  these 
words  denote  only  the  different  modes  in  which  those  classes 
of  evidentiary  facts  operate  to  produce  conviction.  Circum- 
stantial evidence  is  of  a  nature  identically  the  same  with 
direct  evidence ;  the  distinction  is,  that  by  direct  evidence 
is  intended  e\ddence  which  applies  directly  to  the  fact  which 
forms  the  subject  of  inquiry,  the  factum  jyrohandum, ,'  ciecum- 
STANTiAL  EVIDENCE  is  equally  direct  in  its  nature,  but,  as  its 
name  imports,  it  is  direct  evidence  of  a  minor  fact  or  facts,  in- 
cidental to  or  usually  connected  with  some  other  fact  as  its 
accident,  and  from  which  such  other  fact  is  therefore  inferred. 

By  the  Georgia  code  circumstantial  evidence  is  defined  as 
that  which  only  tends  to  establish  the  issue  by  proof  of  various 
facts  sustaining,  by  their  consistency,  the  hypothesis  claimed.^ 
A  witness  deposes  that  he  saw  A.  inflict  on  B.  a  wound,  of 
which  he  instantly  died  ;  this  is  a  case  of  direct  evidence,  B. 
dies  of  poison ;  A.  is  proved  to  have  had  malice  and  uttered 
threats  against  him,  and  to  have  clandestinely  purchased  poison, 
wrapped  in  a  particular  paper,  and  of  the  same  kind  as  that 
which  has  caused  death  ;  the  paper  is  found  in  his  secret  drawer, 
and  the  poison  gone.  The  evidence  of  these  facts  is  direct  /  the 
facts  themselves  are  indirect  and  cirGumstantial^  as  applicable 
to  the  inquiry  whether  a  murder  has  been  committed,  and 

1  Ga.  Code,  §  3748. 

15 


16       CHARACTERISTICS  OF  CIRCUMSTANTIAL  EVIDENCE. 

whether  it  was  committed  by  A,^  Circmnstantial  evidence 
consists  in  reasoning  from  facts  which  are  proved  to  establish 
such  as  are  conjectured  to  exist.^ 

So  rapid  are  our  intellectual  processes  that  it  is  frequently 
difficult,  and  even  impossible,  to  trace  the  connection  between 
an  act  of  the  judgment  and  the  train  of  reasoning  of  which  it 
is  the  result ;  and  the  one  appears  to  succeed  the  other  instan- 
taneously, by  a  kind  of  necessity.  This  fact  obtains  most  com- 
monly in  respect  of  matters  which  have  been  frequently  the 
objects  of  mental  association. 

In  matters  of  direct  testimony,  if  credence  be  given  to  the 
relators,  the  act  of  hearing  and  the  act  of  belief,  though  really 
not  so,  seem  to  be  contemporaneous.  But  the  case  is  very 
different  Vv^hen  we  have  to  determine  upon  circumstantial  evi- 
dence, the  judgment  in  respect  of  which  is  essentially  infer- 
ential. There  is  no  apparent  necessary  connection  between  the 
facts  and  the  inference ;  iho.  facts  may  be  true,  and  the  infer- 
ence erroneous,  and  it  is  only  by  comparison  with  the  results 
of  observation  in  similar  or  analogous  circumstances,  that  we 
acquire  confidence  in  the  accuracy  of  our  conclusions. 

The  term  presumptive  is  frequently  used  as  synonymous 
with  cmcuMSTANTiAL  EVIDENCE  ;  but  it  is  not  so  used  with  strict 
accuracy.  The  word  "  presumption,"  ex  m  termini^  imports 
an  inference  from  facts.  A  presumption  in  strictness  is  an 
inference  as  to  the  existence  of  one  fact^from  a  knowledge  of 
the  existence  of  some  other  fact,  made  solely  by  virtue  of  pre- 
vious experience  of  the  ordinary  connection  between  the  known 

1  "  It  is  obvious  that  the  means  of  indirect  i^roof  must  usually  be  supplied 
by  dii-ect  proof  ;  for  no  inference  can  be  drawn  from  any  collateral  facts 
until  those  facts  have  themselves  been  first  satisfactorily  established,  either 
by  actual  observation,  or  information  derived  from  others  who  have 
derived  their  knowledge  from  such  observation."  Stark.  Ev.  (10th  Am.  Ed.) 
17.  Mr.  Bishop  in  his  Criminal  Procedure  (2d  Ed.),  p.  1069,  defines  circum- 
stantial evidence  as  a  "  species  of  presumptive  evidence  consisting  in  this, 
that  where  there  is  no  satisfactory  evidence  of  the  direct  fact,  certain  facts 
which  are  assumed  to  have  stood  around,  or  been  attendant  on,  the  main 
fact  are  proved,  from  the  existence  of  which  the  direct  fact  may  be  in- 
ferred." In  Jenkins  V.  State,  62  Wis.  49,  a  charge  given  in  the  language  of 
this  passage  was  criticised,  the  objection  being  mainly  to  the  use  of  the 
word  "assumed."  It  was  contended  that  this  authorized  the  jury  to 
assume  the  existence  of  facts  which  were  not  proved.  The  court,  however, 
held  that  no  such  construction  could  be  put  on  the  language,  the  word 
' '  assumed  "  being  evidently  used  in  the  sense  of  claimed. 

2  People  V.  Kennedy,  32  N.  Y.  141. 


CHARACTERISTICS  OF  CIRCUMSTANTIAL  EVIDENCE.         17 

and  inferred  facts,  and  independently  of  any  process  of  reason 
in  the  particular  instance.^  And  the  adjunct  "  presumptive," 
as  applied  to  evidentiary  facts,  implies  the  certainty  of  some 
relation  between  the  facts  and  the  inference. 

Circumstances  generally,  but  not  necessarily,  lead  to  partic- 
ular inferences ;  for  the  facts  may  be  indisputable,  and  yet 
their  relation  to  the  principal  fact  may  be  only  apparent,  and 
not  real ;  and  even  when  the  connection  is  real,  the  deduction 
may  be  erroneous.  Circumstantial  and  presumptive  evidence 
differ,  therefore,  as  genus  and  species. 

The  force  and  effect  of  circumstantial  evidence  depend  upon 
its  incompatibility  with,  and  incapability  of,  explanation  or 
solution  upon  any  other  supposition  than  that  of  the  truth  of 
the  fact  which  it  is  adduced  to  prove ;  the  mode  of  argument 
resembling  the  method  of  demonstration  by  the  reductio  ad 
ahsurdum.  But  this  is  a  part  of  the  subject  which  will  more 
appropriately  admit  of  amplification  in  a  subsequent  part  of 
this  volume. 

1  Stark.  Ev.  (10th  Am.  Ed.)  839. 
2 


CHAPTER  II. 

PRESUMPTIONS. 

It  is  essential  to  a  just  view  of  our  subject  that  our  notions 
of  the  nature  of  peesumptions  should  be  precise  and  distinct. 
A  PRESUMPTION  is  a  probable  consequence,  drawn  from  facts 
(either  certain  or  proved  by  direct  testimony),  as  to  the  truth 
of  a  fact  alleged,  but  of  which  there  is  no  direct  proof.  It 
follows,  therefore,  that  a  presumption  of  any  fact  is  an  in- 
ference of  that  fact  from  others  that  are  known.^  The  word 
"  presumption,"  therefore,  inherently  imports  an  act  of  reason- 
ing, a  conclusion  of  the  judgment ;  and  it  is  applied  to  denote 
such  facts  or  moral  phenomena  as  from  experience  we  know 
to  be  invariabl}^  or  commonly  connected  with  some  other 
related  fact.  A  wounded  and  bleeding  body  is  discovered ;  it 
has  been  plundered  ;  wide  and  deep  footmarks  are  found  in  a 
direction  proceeding  from  the  body  ;  or  a  person  is  seen  run- 
ning from  the  spot.  In  the  one  case  are  observed  marks  of 
flight,  in  the  other  is  seen  the  fugitive,  and  we  know  that  guilt 
naturally  endeavors  to  escape  detection.  These  circumstances 
induce  the  presumption  that  crime  has  been  committed ;  the 
presumption  is  a  conclusion  or  consequence  from  the  circum- 
stances. The  antecedent  circumstances,  therefore,  are  one 
thing,  the  presumption  from  them  another  and  different  one. 
Of  presumptions  afforded  by  moral  phenomena,  a  memorable  in- 
stance is  recorded  in  the  Judgment  of  Solomon,  whose  knowl- 
edge of  the  all-powerful  force  of  maternal  love  supplied  him 
with  an  infallible  criterion  of  truth.^  So,  when  Aristippus, 
who  had  been  cast  away  on  an  unknown  shore,  saw  certain 
geometrical  figures  traced  in  the  sand,  his  inference  that  the 
country  was  inhabited  by  a  people  conversant  with  mathe- 

1  Per  Abbott,  C.  J.,  in  Rex  v.  Burdett,  4  B.  «S;  Aid.  161.   See  also  Roberts 
V.  People,  9  Col.  458. 

2  Domat's  Civ.  Law,  b.  iii.  tit.  6. 

18 


PRESUMPTIONS.  19 

matics  "was  a  presumption  of  the  same  nature.^  It  is  evident 
that  this  kind  of  reasoning  is  not  peculiar  to  legal  science,  but 
is  a  logical  process  common  to  every  subject  of  human  investi- 
gation. 

All  presumptions  connected  A\'ith  human  conduct  are  infer- 
ences founded  upon  the  observation  of  man's  nature  as  a  sentient 
being  and  a  moral  agent ;  and  they  are  necessarily  infinite  in 
variety  and  number,  differing  according  to  the  diversities  of 
indi\adual  character,  and  to  the  innumerable  and  ever-changing 
situations  and  emergencies  in  which  men  are  placed.  Hence 
the  importance  of  a  knowledge  of  the  instincts,  affections, 
desires,  and  moral  capabilities  of  our  nature,  to  the  correct  de- 
duction of  such  presumptions  as  are  founded  upon  them,  and 
which  are  therefore  called  natural  pkesumptions.^ 

Legal  presumptions  are  founded  upon  natural  presumptions, 
being  such  natural  presumptions  as  are  connected  wdth  human 
actions,  so  far  as  they  are  authoritatively  constituted  by  the 
legislator  or  deduced  by  the  magistrate.^ 

The  civilians  divided  legal  presumptions  into  two  classes, 
naiae\y,prcesumj>t{  ones  juris  et  dejure,  and  j)rcesu7)i2)ti  ones ju7'is 
simply. 

Presumptions  of  the  former  class  were  such  as  were  consid- 
ered to  be  founded  upon  the  connection  and  relation  so  intimate 
and  certain  between  the  fact  known  and  the  fact  sought,  that 
the  latter  was  deemed  to  be  an  infallible  consequence  from  the 
existence  of  the  first.  Such  presumptions  were  calledp?'(esu?np- 
tiones  juris,  because  their  force  and  authority  were  recognized 
by  the  law ;  and  dejure,  because  the}''  were  made  the  founda- 
tion of  certain  specific  legal  consequences,^  against  which  no 
argument  or  evidence  was  admissible ;  while  'prcBsumiMones 
juris  simply,  though  deduced  from  facts  characteristic  of  truth, 
were  always  subject  to  be  overthrown  by  proof  of  facts  lead- 
ing to  a  contrary  presumption.  And  our  own  writers,  having 
regard  to  this  classification,  have  considered  presumptions  of 
law  under  two  heads,  conclusive  and  disputahle,  or  rebuttable.^ 

In    matters    of    property,    the  principal   modifications   of 

^  Gambler's  Introduction  to  the  Study  of  Moral  Ev.  55. 
2  3  Mascardus  De  Probationabus,  Conclusio  Mccxxvi. 
^  Such,  for  instance,  as  that  a  child  under  seven  years  of  age  is  incapable 
of  committing  a  felony. 
*  Menochius  De  Pi-aesumptionibus,  lib.  i.  q.  3. 
6  1  Greenl.  on  Ev.  (14th  Ed.)  §  14  et  seq. 


20  PRESUMPTIONS. 

which  are  matters  of  positive  institution,  the  laws  of  every 
country  have  created  artificial  legal  presumptions,  grounded 
upon  reasons  of  policy  and  convenience,  to  prevent  social  dis- 
cord, and  to  fortify  private  right.  The  justice  and  policy  of 
such  regulations  have  been  thus  eloquently  enforced :  "  Civil 
cases  regarded  property  ;  now,  although  property  itself  is  not, 
yet  almost  everything  concerning  property,  and  all  its  modifica- 
tions, is,  of  artificial  contrivance.  The  rules  concerning  it 
become  more  positive,  as  connected  with  positive  institutions. 
The  legislator,  therefore,  always,  the  jurist  frequently,  may 
ordain  certain  methods,  by  which  alone  they  will  suffer  such  mat- 
ters to  be  known  and  established ;  because  their  very  essence,  for 
the  greater  part,  depends  on  the  arbitrary  conventions  of  men. 
Men  act  on  them  with  all  the  power  of  a  creator  over  his  creat- 
ures. They  make  fictions  of  law  and  presumptions  of  law 
{prmsumptiones  juris  et  de  jure)  according  to  their  ideas  of 
utility,  and  against  those  fictions,  and  against  presumptions  so 
created,  they  do  and  may  reject  all  evidence."  ^ 

But  in  penal  jurisprudence,  man  as  a  physical  being  and  a 
moral  agent,  such  as  he  is  by  natural  constitution,  and  by  the 
influences  of  social  condition,  is  the  subject  of  inquiry.  Puni- 
tive justice  is  applied  to  injurious  actions  proceeding  from 
malignity  of  purpose,  and  not  to  physical  actions  merely.  It 
has  been  said  Avith  great  force  and  accuracy  that  "  where  the 
subject  is  of  a  physical  nature,  or  of  a  moral  nature,  inde- 
pendent of  their  conventions,  men  have  no  other  reasonable 
authority  than  to  register  and  digest  the  results  of  experience 
and  observation ; "  and  that  "  the  presumptions  which  belong- 
to  criminal  cases  are  those  natural  and  popular  presumptions 
which  are  only  observations  turned  into  maxims,  like  adages  and 
apophthegms,  and  are  admitted  (when  their  grounds  are  estab- 
lished) in  the  place  of  proof,  where  better  is  wanting,  but  are  to 
be  always  overturned  by  counter-proof.'''  ^  Hence,  therefore,  a 
third  class  of  presumptions,  which  the  civilians  called  j^^'i^sumj?- 
tions  hominis,  because  they  were  inferred  by  the  sagacity  aiid 
discretion  of  the  judge  from  the  facts  judicially  before  him. 
Such  presumptions  are  in  fact  natural   presumptions  simply, 

1  2  Burke's  Works,  623  ;  ed.  1834,  by  Holdsworth  and  Ball  ;  3  Mascardus, 
ut  supra,  Conclusio  MCCXXVUI. 

2  Burke's  Works,  ut    supra,  623  ;  3    Mascardus,   ut    supra,   Conclusio 

MCCXSVIII. 


PRESUMPTIONS.  21 

deriving  their  force  from  that  relation  and  connection  which 
are  recognized  and  acknowledged  by  the  unsophisticated  rea- 
son of  all  observing  and  reflecting  men. 

Presmnptions  of  every  kind,  to  be  just,  must  be  dictated  by 
nature  and  reason ;  and,  except  under  special  and  peculiar  cir- 
cmnstances,  it  is  impossible,  without  a  dereliction  of  every 
rational  principle,  to  lay  down  positive  rules  of  presumption, 
where  every  case  must  of  necessity  be  connected  with  peculiar- 
ities of  personal  disposition  and  of  concomitant  circumstances, 
and  be  therefore  irreducible  to  any  fixed  principle.  In  criminal 
jurisprudence,  therefore,  arbitrary  presumptions  should  be  and 
indeed  are,  sparingly  admitted ;  and  even  when  they  are  so,  they 
occasionally  work  injustice.*  On  the  conviction  of  the  captain 
of  a  schooner  for  ha\dng  naval  stores  in  his  possession,  Mr.  Baron 
Alderson,  in  passing  sentence  of  six  months'  imprisonment, 
said  that  he  was  satisfied  he  had  become  possessed  of  the  stores 
in  ignorance  of  the  Act  of  Parliament,  but  that  it  was  of  the 
greatest  importance  that  its  provisions  should  be  generally 
known,  and  expressed  his  hope  that  his  good  character  would 
operate  to  obtain  a  mitigation  of  the  sentence.^  It  would  be 
as  unreasonable  to  subject  human  actions  to  unbending  rules  of 
presumption,  as  to  prescribe  to  the  commander  of  a  ship  in- 
flexible rules  for  his  conduct  vvithout  any  latitude  of  discretion  in 
the  unforeseen  and  innumerable  accidents  and  contingencies  of 
the  tempest  and  the  ocean.  Where  a  peremptory  presumption 
of  legal  guilt  is  not  pernicious  and  unjust,  it  is  in  general  at 
least  unnecessar}'- ;  for,  if  it  be  a  fair  conclusion  of  the  reason,  it 
will  be  adopted  by  the  tribunals,  vWthout  the  mandate  of  the 
legislature.  There  may,  no  doubt,  be  cases  where  the  provis- 
ions of  the  law  are  peculiarly  liable  to  be  defeated  or  evaded 
by  subtle  contrivances  and  shifts  most  difficult  of  prevention. 
But,  even  in  such  cases,  legal  presumptions  can  only  be  justifi- 
able where  the  proximate  substituted  fact  of  presumption  is 
clearly  of  a  guilty  character  and  tendency  p^r  se,  and  would 
afford,  even  in  the  absence  of  legal  enactment,  a  strong 
moral  ground  of  presumption  indicative  of  the  particular  act 

1  Artificial  presumptions  can  never  be  safelj'  established  as  a  means  of 
proof  in  a  criminal  case.  To  convict  an  innocent  man  is  an  act  of  positive 
injustice,  which,  according  to  one  of  the  best  and  most  humane  prin- 
ciples of  our  law,  cannot  be  expiated  by  the  conviction  of  an  hundred  crim- 
inals who  might  otherwise  have  escaped.     2  Hale,  289. 

2  Reg.  V.  Trannock,  Liverpool  Winter  Ass.,  1848. 


22 


PRESUMPTIONS. 


of  criminality  intended  to  be  repressed  ;  ^  and  however  explicit 
and  conclusive  may  be  the  language  of  the  legislature,  the  tri- 
bunals must  by  an  inherent  necessity  give  effect  to  all  such 
surrounding  circumstances  as  tend  to  repel  or  modify  the  par- 
ticular presumption,  or  to  create  a  counter-presumption  of  equal 
or  superior  weight.  It  is  impossible  to  recall  without  horror 
the  sanguinary  law  ^  which  made  the  concealment  of  the  death 
of  an  illegitimate  child  by  its  mother  conclusive  evidence  of 
murder,  unless  she  could  make  proof,  by  one  witness  at  least, 
that  the  child  was  born  dead,  and  which  too  long  disgraced 
our  statute  book  ;  whereas  in  truth  it  affords  no  ground  to 
warrant  such  a  conclusion,  since  it  is  more  natural  and  more 
just  to  attribute  the  suppression  to  a  desire  to  conceal  female 
shame,  and  to  escape  open  dishonor. 

As  evidentiary  circumstances  and  their  combinations  are  in- 
finitely varied,  so  also  are  the  presumptions  to  which  they  lead  ; 
and  a  complete  enumeration  would  in  either  case  be  impracti- 
cable. The  writers  on  the  civil  law  have  made  a  comprehensive 
and  instructive  collection  of  facts  and  inferential  conclusions, 
in  relation  to  a  vast  number  of  actions  connected  with  legal 
accountability.  But  many  things  advanced  by  those  laborious 
and  elaborate  authors  have  relation  to  a  state  of  society,  and 
to  legal  institutions  and  modes  of  procedure,  wholly  dissimilar 
from  our  own.  The  law  of  England  admits  of  no  such  thing 
as  the  semi-plena  probatio,  founded  on  circumstances  of  con- 
jecture and  suspicion  only,  which,  in  many  countries  governed 
by  the  Roman  law,  was  held  to  warrant  the  infliction  of  torture 
with  a  view  to  compel  admissions  and  complete  imperfect  proof. 
Hence  the  total  inapplicability  with  us  of  the  subdivisions  of 
indicia.^  signa,  adminicular  conjecturce,  duhia,  and  susjjiciones, 
which  are  found  in  the  writers  of  other  countries  whose  juris- 
prudence is  founded  upon  that  of  Rome,  subdivisions  which 
appear  to  be  arbitrary,  vague,  and  useless.  But  it  is  manifest 
that,  under  legal  institutions  which  admitted  of  compulsory 
self-accusation,  in  order  to  complete  proof  insufficient  and  in- 
conclusive in  itself,  and  where  the  laws  were  administered  by 
a  single  judge,  without  the  salutary  restraints  of  publicity  and 
popular  observation,  an  accurate  and  elaborate  record  of  the 
multitudinous  actions  and  occurrences  which  had  been  submitted 

1  Traite  des  Preuves,  par  Bonnier,  702  ;  3d  Ed. 

2  Stat.  21  Jac.  I.  o.  27  ;  repealed  by  43  Geo.  III.  c.  58,  §  3. 


PRESUMPTIONS.  23 

to  the  criminal  tribunals  operated  as  an  important  limitation 
upon  the  tyranny  and  inconstancy  of  judicial  discretion. 

It  is  calculated  to  excite  surprise  that  arbitrary  technical 
rules  should  ever  have  been  adopted  for  estimating  the  force 
and  effect  of  particular  facts  as  leading  to  presumptions  ;  a 
matter  purely  one  of  reason  and  logic.  It  is  probable,  never- 
theless, that  the  attempt  originated  in  the  desire  to  escape  a 
still  greater  absurdity.  ^^  Testis  nnus,  testis  nulluSy''  '■'•tmus 
testis  non  est  audiendus^''  were  fundamental  maxims  of  the 
text- writers  on  the  Civil  and  Canon  Laws,  and  of  most  ancient 
codes,^  as  they  still  are  of  judicial  procedure  in  many  parts  of 
Europe.^  Since  presumptions  have  not  the  same  force  as  direct 
evidence,  it  was  hence  supposed  to  be  required,  as  a  logical 
sequence,  that  there  should  be  a  concurrence  of  three  presump- 
tions, as  the  imaginary  equivalent  for  the  testimony  of  two 
ocular  witnesses,  where  such  testimony  was  not  to  be  had.  It 
is  discreditable  to  the  state  of  moral  and  legal  science  that  these 
absurd  and  antiquated  notions,  worthy  of  the  darkest  ages  of 
society,  should  have  been  countenanced  and  perpetuated  in  the 
legislation  of  several  of  the  nations  of  Europe  even  to  the  pres- 
ent day.^  It  is  obvious  that  a  single  presumption  may  be  con- 
clusive, and  that  an  accumulation  of  many  presumptions  may 
be  of  but  little  weight.  The  simplest  and  most  elementary 
dictates  of  common  sense  require  that  presumptions  should  not 
be  numbered  merel}^,  but  that  they  should  be  weighed  accord- 
ing to  the  principles  which  are  applied  in  estimating  the  effect 
of  testimonial  e\^dence. 

The  prevalence  of  these  fallacious  methods  of  judging  of  the 
force  of  e^ddence  explains  the  foundation  of  the  practice,  ab- 
horrent to  every  principle  of  judicial  integrity,  and  which  still 
extensively  prevails,  of  condemning  to  a  minor  punishment 
persons  who  may  be  innocent,  but  against  whom  there  may 
exist  apparent  grounds  of  strong  presumption,  though  not  that 
exact  kind  and  amount  of  proof  which  the  rules  of  e\ddence 
arbitrarily  and  unreasonably  require ;  as  if  a  middle  term  in 
criminal  jurisprudence  were  not  an  absurdity  and  self-contra- 

1  Deut.  xvii.  6,  7,  xix.  15  ;  Numb.  xxxv.  30  ;  4  Michaelis  on  the  Laws  of 
Moses  by  Smith,  Art.  ccxcix. 

2  Code  Hollandais,  1838 ;  Code  Penal  d'Autriche ;  Code  de  Baviere,  and 
many  other  German  Codes. 

3  Code  Criminel  de  Prusse,  1805  ;  Code  de  Procedure  Criminelle  d'Au- 
triche,  1853  ;  ditto  de  Modene,  1855. 


24:  PRESUMPTIONS. 

dictory.i  An  eminent  foreign  jurist  well  remarks,  that "  Jamais 
il  n'y  a  eu  plus  de  condamnations  injustes  que  sous  1' empire 
d'une  jurisprudence  qui  defendait  de  prononcer  la  peine  capi- 
tale  sur  de  simples  indices."  ^ 

The  unreasonable  stress  which,  in  many  countries  whose 
criminal  procedure  is  derived  from  the  Civil  Law,  is  laid  upon 
the  confession  of  the  accused,  and  the  unwarrantable  means 
which  are  resorted  to  in  order  to  obtain  it,  are  the  natural  re- 
sults of  arbitrary  and  unphilosophical  rules  of  evidence,  which 
necessarily  have  the  effect  of  closing  many  of  the  channels  of 
truth  ;  and  frequently  render  it  so  difficult  to  obtain  full  legal 
proof  of  crime,  that  a  late  eminent  jurist  and  criminal  judge 
declared  that  unless  a  man  chose  to  perpetrate  his  crimes  in 
public,  or  to  confess  them,  he  need  not  fear  a  conviction.* 

Attempts  have  been  made  by  our  own  judicial  writers,  but 
with  no  useful  results,  to  classify  presumptions  in  a  more  gen- 
eral way  under  terms  expressive  of  their  effect,  as  violent  or 
NECESSARY,  PROBABLE  or  GRAVE  and  SLIGHT.*  But  this  arrange- 
ment is  specious  and  fanciful  rather  than  practical  and  real ; 
nor  is  it  entirely  accurate,  since  a  presumption  may  be  violent 
and  j'^et  not  necessar3^^  A  more  precise  and  intelligible  classi- 
fication of  presumptions  is  into  violent  or  strong,  and  slight.^ 

1  See  several  such  cases  in  Narratives  of  Remarkable  Criminal  Trials, 
translated  from  the  German  of  Feuerbach,  by  Lady  Duff  Gordon.  At 
Berne,  in  1842,  a  man  accused  of  murder  by  poisoning  was  sentenced  to 
six  years'  imprisonment,  as  vehementement  suspect. 

2  Bonnier,  ut  supra,  677. 

'  Ed.  Rev.  Ixxxii.  330  ;  and  see  in  Christison  on  Poisons,  61,  ed.  3,  a  case 
where  the  crime  of  murder  by  poisoning  was  considered  as  not  fully  proved 
because  the  prisoner  would  not  confess,  but  on  account  of  the  probability 
of  his  guilt  he  was  condemned  to  fifteen  years'  imprisonment. 

*  Bentham's  Rationale  of  Judicial  Evidence,  b.  i.  c.  vi.  ;  Coke  on  Litt. 
6  b.  ;  4  Blackstone's  Comm.  353. 

^Menochius,  ut  supra,  lib.  i.  q.  3,  Nos.  1,  2,  3  ;  Essai  des  Preuves,  par 
Gabriel,  373  ;  Best  on  Presumptions,  40. 

6  Judge  Walworth,  in  People  v.  Videto,  1  Park.  C.  R.  603,  divided  pre- 
sumptions into  three  classes,  thus  :— 1.  Violent,  where  the  facts  and  circum- 
stances are  those  which  necessarily  attend  the  fact  presented  ;  2.  Probable, 
where  the  facts  and  circumstances  are  those  which  usually  attend  the  fact 
presented ;  3.  Light  or  rash,  where  the  facts  and  circumstances  might 
probably  attend  the  fact.  Lord  Coke  presents  as  an  instance  of  a  violent 
presumption,  "  where  a  man  is  found  suddenly  dead  in  a  room,  and  another 
is  found  running  out  of  that  room  with  a  bloody  sword  in  his  hand." 
Starkie  points  out  that  this  is  in  reality  a  case  of  circumstantial  evidenco, 
and  not  properly  presumption  in  the  strict  seiise  of  the  word,  saying;,  "It  in 


PRESUMPTIONS.  25 

But  it  is  impossible  thus  to  classify  more  than  a  comparatively 
few  of  the  infinite  variety  of  circumstances  connected  with 
human  actions  and  motives,  or  to  lay  down  rules  for  distin- 
guishing presumptions  of  one  of  these  classes  from  those  of 
another;  and  the  terms  of  designation,  from  the  inherent 
imperfections  of  language,  although  not  Avholly  destitute 
of  utility,  are  unavoidably  defective  in  precision.  We  can 
therefore  only  usefully  apply  these  epithets  as  relative  terms  ; 
and  the  effect  of  particular  facts  must  of  necessity  depend  upon 
the  reality  and  closeness  of  the  connection  between  the  princi- 
pal and  secondary  facts,  and  upon  a  variety  of  considerations 
peculiar  to  each  individual  case,  and  can  no  more  be  predicated 
than  the  boundaries  can  be  defined  of  the  separate  colors  which 
form  the  solar  boAV. 

It  is  convenient,  and  may  be  advantageous  even,  in  order  to 
obtain  a  comprehensive  "\ievr  of  the  tendencies  and  effect  of  a 
number  of  circumstances,  to  group  them  together  in  their 
chronological  relation  to  Xh^ factum probandum^  as  antecedent, 
CONCOMITANT,  and  SUBSEQUENT ;  but  to  require  the  concurrence 
of  these  several  kinds  of  presumption,  as  is  the  case  in  the 
criminal  code  of  Bavaria,  is  an  outrage  upon  all  legal  and 
philosophical  principle.^ 

By  various  statutes,  many  acts  are  made  legal  presumptions  of 
guilt,  and  the  onus  of  proving  any  matter  of  defense  is  ex- 
pressly cast  upon  the  party  accused  ;  but,  with  these  exceptions, 
the  truth  of  every  accusation  is  determined  by  the  voice  of  a 
jury,  upon  consideration  of  the  intrinsic  and  independent  merits 
of  each  particular  case,  acting  upon  those  principles  of  reason 
and  judgment  by  which  mankind  are  governed  in  all  other 
cases  where  the  same  intellectual  process  is  called  into  exercise, 
unfettered  by  any  obligatory  and  inflexible  presumptions.  The 
inexpediency  and  inefRcacy  of  positive  presumptions,  as  indica- 
tions of  the  criminality  of  intention,  in  which  alone  consists 
the  essence  of  legal  guilt,  have  been  thus  exposed  with  equal 
force  and  elegance  by  the  hand  of  a  master :  "  The  connection 

evident  that  a  witness  who  had  never  seen  such  a  transaction  before  would 
as  readily  come  to  the  proper  conclusion,  as  one  who  had  actually  had  ex- 
perience of  similar  facts  ;  and  consequently  that  reason,  and  not  any  pre- 
vious experience  of  similar  association,  supplies  the  inference."  P.  753 
(10th  Am.  Ed.). 

1  Bonnier,  id  supra,  683  ;  Traite  de  la  Preuve,  par  Mittermaier  (traduit 
par  Alexandre),  c.  61. 


26  PRESUMPTIONS. 

of  the  intention  and  the  circumstances  is  plainly  of  such  a 
nature  as  more  to  depend  on  the  sagacity  of  the  observer  than 
on  the  excellency  of  any  rule.  The  pains  taken  by  the  civilians 
on  that  subject  have  not  been  very  fruitful ;  and  the  English 
law-writers  have,  perhaps  as  wisely,  in  a  manner  abandoned 
the  pursuit.  In  truth,  it  seems  a  wild  attempt  to  lay  down  any 
rule  for  the  proof  of  intention  by  circumstantial  evidence."  ^ 

1  2  Burke's  Works,  lit  supra,  623. 

In  this  chapter  and  in  the  preceding  chapters  of  the  vohime,  constant  re- 
sort has  been  had  to  the  reasoning  of  Mr.  WilUam  Wills.  (See  Preface.) 
With  one  exception  no  other  legal  author  with  whose  works  the  writer  is 
familiar  has  understood  so  thoroughly  the  true  nature  of  evidence.  It  has 
been  thought  that  any  attempt  at  an  entirely  new  and  original  treatment 
of  the  matters  thus  far  considered,  must  be,  in  comparison,  weak  and  un- 
satisfactory. 

The  exception  referred  to  above  is  Mr.  Justice  Wilson,  whose  lecture  on 
"  The  Nature  and  Philosophy  of  Evidence"  is  a  masterpiece,  and  well 
worthy  the  careful  perusal  of  every  lawyer  or  layman  who  has  an  am- 
bition to  be  well  informed  "  concerning  the  sound  and  genuine  sources  and 
principles  of  evidence."  Wilson's  Works,  vol.  i,  p.  457  et  seq.  The  author 
cannot  refrain  from  calling  attention  to  the  similarity  of  the  methods  of 
these  two  distinguished  philosophers. 


CHAPTER  III. 

RELATIVE  VALUE  OF  DIRECT  AND  CIRCUMSTANTIAL    EVIDENCE. 

The  foregoing  observations  naturally  lead  to  a  comparison 
of  the  relative  value  of  Direct  and  Indirect  or  Circumstantial 
Evidence  ;  an  inquiry  which  becomes  the  more  necessary,  on 
account  of  some  novel  and  questionable  doctrines  which  have 
received  countenance  even  from  the  judgment  seat. 

The  best  writers,  ancient  and  modern,  on  the  subject  of  evi- 
dence, have  concurred  in  treating  circumstantial  as  inferior  in 
cogency  and  effect  to  direct  evidence ;  a  conclusion  which 
seems  to  foUow  necessarily  from  the  very  nature  of  the  differ- 
ent kinds  of  e^4dence.  But  language  of  a  directly  contrary 
import  has  been  so  often  used  by  authorities  of  no  mean  note, 
as  to  have  become  almost  proverbial,  and  to  require  examina- 
tion. 

It  has  been  said  that  "  circumstances  are  inflexible  proofs  ; 
that  witnesses  may  be  mistaken  or  corrupted,  but  things  can  be 
neither."  ^  "  Circumstances,"  says  Paley,  "  cannot  lie."  ^  It  is 
astonishing  that  sophisms  like  these  should  have  passed  current 
without  animadversion.  The  "  circumstances  "  are  assumed  to 
be  in  every  case  established  beyond  the  possibility  of  mistake  ; 
and  it  is  implied  that  a  circumstance  established  to  be  true 
possesses  some  mysterious  force  peculiar  to  facts  of  a  certain 
class.  ]S^ow  a  cu'cumstance  is  neither  more  nor  less  than  a 
minor  fact,  and  it  may  be  admitted  of  all  facts  that  they  can- 
not lie  ;  for  a  fact  cannot  at  the  same  time  exist  and  not  exist : 
so  that  in  truth  the  doctrine  is  merely  the  expression  of  a 
truism,  that  a  fact  is  a  fact.  It  may  also  be  admitted  that 
"  circumstances  are  inflexible  proofs,"  but  assuredly  of  nothing 
more  than  of  their  own  existence :  so  that  this  assertion  is  only 
a  repetition  of  the  same  truism  in  different  terms.     Circum- 

1  Burnett's  C.  L.  of  Scotland,  523. 

2  Principles  of  Moral  and  Political  Philosophy,  b.  vi.  c.  ix. 

27 


28 


RELATIVE  VALUE  OF 


stantial  proof,  it  has  been  said,  loses  nothing  by  the  lapse  of 
time,  and  may  preponderate  over  the  recollection  of  a  credible 
witness.^  And  again, "  Circmnstantial  evidence  is  often  stronger 
and  more  satisfactory  than  direct,  because  it  is  not  liable  to 
delusion  or  fraud."  2 

A  distinguished  statesman  and  orator  has  advanced  in  unquali- 
fied terms  the  proposition,  supported,  he  alleges,  by  the  learned, 
that  "  when  circumstantial  proof  is  in  its  greatest  perfection, 
that  is,  when  it  is  most  abundant  in  circumstances,  it  is  much 
superior  to  positive  proof."  ^  Paley  has  said,  with  more  of 
caution,  that  "  concurrence  of  well-authenticated  circumstances 
composes  a  stronger  ground  of  assurance  than  positive  testi- 
mony, unconfirmed  by  circumstances,  usually  affords."  *  Juries 
have  been  told  that  circumstantial  evidence  is  as  good  as  any 
other  kind  of  evidence  ;  ^  that  strong  circumstances  of  suspicion 
may  overcome  positive  evidence  ;  ^  and  that  circumstantial  evi- 
dence is  often  more  persuasive  to  convince  the  mind  of  a  fact 
than  the  positive  evidence  of  a  witness.^ 

Mr.  Baron  Legge,  upon  a  trial  for  murder,  told  the  jury  that 
where  a  "  violent  presumption  necessarily  arises  from  circum- 
stances, they  are  more  convincing  and  satisfactory  than  any 
other  kind  of  evidence,  hecause  facts  cannot  lie^  ^  Mr.  Justice 
BuUer,  in  his  charge  to  the  jury  in  Donellan's  case,  said  "  that 
a  presumption  which  necessarily  arises  from  circumstances  is 
very  often  more  convincing  and  more  satisfactory  than  any 
other  kind  of  evidence,  because  it  is  not  within  the  reach  and 
compass  of  human  abilities  to  invent  a  train  of  circumstances 
which  shall  be  so  connected  together  as  to  amount  to  a  proof 
of  guilt,  without  affording  opportunities  of  contradicting  a 
great  part,  if  not  all,  of  those  circumstances."  ^ 

It  is  obvious  that  the  doctrine  laid  down  in  these  several 
passages  is  propounded  in  language  which  not  only  does  not 

1  Ridley  v.  Ridley,  1  Cold.  323. 

2  Whitman,  C.  J.,  State  v.  Thomas,  6  Law  Rep.  64. 
8  2  Burke's  Works,  624,  ut  supra. 

*  Moral  and  Political  Philosophy,  b.  vi.  c.  ix. 

5  West  V.  State,  76  Ala.  98. 

6  Nelson  v.  U.  S.,  Pet.  C.  C.  235. 

7  U.  S.  V.  Johns,  1  Wash.  C.  C.  363.    And  see  The  Robert  Edwards,  6  Wheat. 
187  :  Tlie Struggle  v.  U.S.,  9  Cranch,  71  ;  Kempner  r.  Churchill,  8  Wall.  362. 

8  Rex  V.  Blandy,  18  St.  Tr.  1187. 

9  Gurney's  Report  of  the  trial  of  John  Donellan,  Esq.,  for  murder,  at  the 
Assize  at  Warwick,  March  30,  1781. 


DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE.  29 

accurately  state  the  question,  but  implies  a  fallacy,  and  that 
extreme  cases,  the  strongest  ones  of  circumstantial  and  the 
weakest  of  positive  evidence,  have  been  selected  for  the  illustra- 
tion and  support  of  a  general  position.  "  A  presumption  which 
necessarily  arises  from  circumstances  "  cannot  admit  of  dispute, 
and  requires  no  corroboration ;  but  then  it  cannot  in  fairness 
be  contrasted  with  and  opposed  to  positive  testimony,  unless  of 
a  nature  equally  cogent  and  infallible.  If  evidence  be  so  strong 
as  necessarily  to  produce  certainty  and  conviction,  it  matters 
not  by  what  kind  of  evidence  the  effect  is  produced  ;  and  the 
intensity  of  the  proof  must  be  precisely  the  same,  whether  the 
evidence  be  direct  or  circumstantial.  It  is  not  intended  to 
deny  that  circumstantial  evidence  affords  a  safe  and  satisfactory 
ground  of  assurance  and  belief ;  that  it  may  often  be  as  con- 
clusive upon  the  understanding  as  direct  and  positive  evidence 
would  be ;  ^  nor  that  in  many  individual  instances  it  may  be 
superior  in  proving  power  to  other  individual  cases  of  proof  by 
direct  evidence.  But  a  judgment  based  upon  circumstantial 
evidence  cannot,  in  any  case,  be  more  satisfactory  than  when 
the  same  result  is  produced  by  direct  e\ddence,  free  from  sus- 
picion of  bias  or  mistake. 

Perhaps  no  single  circumstance  has  been  so  often  considered 
as  certain  and  unequivocal  in  its  effect  as  the  anno  domini 
water-mark  usually  contained  in  the  fabric  of  writing  paper ; 
and  in  many  instances  it  has  led  to  the  exposure  of  fraud  in  the 
propounding  of  forged  as  genuine  instruments.  But  it  is  be- 
yond any  doubt  that  issues  of  paper  have  taken  place  bearing 
the  water-mark  of  the  year  succeeding  that  of  its  distribution, 
a  striking  exemplification  of  the  fallacy  of  some  of  the  argu- 
ments which  have  been  remarked  upon. 

The  proper  effect  of  circumstantial  as  compared  ^vith  direct 
evidence  was  thus  accurately  stated  by  Lord  Chief  Baron  Mac- 
donald :  "  When  circumstances  connect  themselves  closely  with 
each  other,  when  they  form  a  large  and  a  strong  body,  so  as  to 
carry  conviction  to  the  minds  of  a  jury,  it  may  be  proof  of  a 
more  satisfactory  sort  than  that  which  is  direct.  In  some  la- 
mentable instances  it  has  been  known  that  a  short  story  has 
been  got  by  heart  by  two  or  three  witnesses ;  they  have  been 
consistent  with  themselves,  they  have  been  consistent  with  each 

»  Law  V.  State,  33  Tex.  37  ;  Jewett  v.  Banning,  21  N.  Y.  27 ;  U.  S.  v. 
Cole,  5  McLean,  601 ;  U.  S.  v.  Gilbert,  2  Sumn.  19. 


30  RELATIVE  VALUE  OF 

other,  swearing  positively  to  a  fact,  which  fact  has  turned  out 
afterwards  not  to  be  true.  It  is  ahnost  impossible  for  a  variety 
of  witnesses,  speaking  to  a  variety  of  circumstances,  so  to  con- 
cert a  story  as  to  impose  upon  a  jury  by  a  fabrication  of  that 
sort,  so  that  where  it  is  cogent,  strong,  and  powerful,  where 
the  witnesses  do  not  contradict  each  other,  or  do  not  contradict 
themselves,  it  may  be  evidence  more  satisfactory  than  even 
direct  evidence ;  and  there  are  more  instances  than  one  where 
that  has  been  the  case."  ^  In  another  case  the  same  learned 
judge  said,  "  Where  the  proof  arises  from  the  irresistible  force 
of  a  number  of  circumstances  which  we  cannot  conceive  to  be 
fraudulently  brought  together  to  bear  upon  one  point,  that  is 
less  fallible  than  under  some  circumstances  direct  evidence  may 
BE."  2  And  it  has  been  said  that  the  law  cannot  declare  in 
general  which  is  the  more  satisfactory  by  any  defined  combi- 
nations of  facts,  so  much  does  the  question  depend  upon  the 
minute  and  peculiar  circumstances  incident  to  each  case.^  It 
has  been  held  improper  to  charge  that  direct  testimony  is  al- 
ways the  more  satisfactory.*  On  the  other  hand,  a  charge  that 
"  the  law  makes  no  distinction  between  circumstanti'ul  and  posi- 
tive evidence,"  is  faulty.  It  is  too  broad ;  and,  especially  in 
the  absence  of  any  caution  by  the  court  as  to  the  care  to  be 
used  in  applying  such  evidence,  is  it  liable  to  mislead.^  Some 
instructive  remarks  on  this  subject  were  made  in  a  recent  cele- 
brated case  by  a  learned  judge  of  the  New  York  Court  of 
Appeals  :  ^ 

"  All  evidence  is,  in  a  strict  sense,  more  or  less  circumstantial,'' 
whether  consisting  in  facts  which  permit  the  inference  of  guilt, 
or  given  by  eyewitnesses  of  the  occurrence ;  for  the  testimony  of 
eyewitnesses  is,  of  course,  based  upon  circumstances  more  or  less 
distinctly  and  directly  observed.  But  of  course  there  is  a  differ- 
ence between  evidence  consisting  in  facts  of  a  peculiar  nature, 
and  hence  giving  rise  to  presumptions,  and  evidence  which  is  di- 

1  Rex  V.  Patch,  Surrey  Spring  Assizes,  1806. 

2  Rex  V.  Smith,  for  arson,  Old  Bailey,  June  15,  1813.      Shorthand  Report 
by  Gurney. 

8  State  V.  Van  Winkle,  6  Neb.  344,  quoting  Starkie. 

4  People  V.  Johnson,  140  N.  Y.  350  ;  55  N.  Y.  S.  R.  783. 

5  Burt  V.  State  (Miss.),  16  So.  342, 

6  Remarks  of  Gray,  J.,  in  People  v.  Harris,  136  N.  Y.  423. 

■^  See  also  remarks  of  Gibson,  C.  J.,  in  Com.  v.  Harnan,  4  Pa.  269  :  "  The 
difference  being  only  in  degree." 


DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE.  31 

rect  as  consisting  in  the  positive  testimony  of  eyewitnesses ;  and 
the  difference  is  material  according  to  the  degree  of  exactness  and 
relevancy,  the  weight  of  the  circmnstances,  and  the  credibility  of 
witnesses.  The  mind  may  be  reluctant  to  conclude  upon  the  issue 
of  guUt  in  criminal  cases  upon  evidence  which  is  not  direct,  and 
yet  if  the  facts  brought  out,  when  taken  together,  all  point  in  the 
one  direction  of  guilt,  and  to  the  exclusion  of  any  other  hypo- 
thesis, there  is  no  substantial  reason  for  that  reluctance.  Purely 
circumstantial  e\ddence  may  be  often  more  satisfactory  and  a 
safer  form  of  evidence,  for  it  must  rest  upon  facts  which,  to 
prove  the  truth  of  the  charge  made,  must  collectively  tend  to 
establish  the  guilt  of  the  accused.  For  instance,  if  any  of  the 
material  facts  of  a  case  were  at  variance  with  the  probabilities 
of  guHt,  it  would  be  the  duty  of  the  jury  to  give  to  the  defendant 
the  benefit  of  the  doubt  raised.  A  fact  has  the  sense  of,  and  is 
equivalent  to,  a  truth,  or  that  which  is  real.  It  is  in  the  ingen- 
ious combination  of  facts  that  they  may  be  made  to  deceive,  or 
to  express  what  is  not  the  truth.  In  the  evidence  of  eyewit- 
nesses to  prove  the  facts  of  an  occurrence,  ^e  are  not  guaranteed 
against  mistake  and  falsehood,  or  the  distortion  of  truth  by 
exaggeration  or  prejudice ;  but  when  we  are  dealing  with  a 
number  of  established  facts,  if,  upon  arranging,  examining, 
and  weighing  them  in  our  mind,  we  reach  only  the  conclusion 
of  guilt,  the  judgment  rests  upon  pillars  as  substantial  and 
sound  as  though  resting  upon  the  testimony  of  eyewitnesses." 

In  truth,  direct  and  circumstantial  evidence  ought  not  to  be 
placed  in  contrast,  since  they  are  not  mutually  opposed  ;  ^  for 
evidence  of  a  circumstantial  and  secondary  nature  can  never 
be  justifiably  resorted  to,  except  where  evidence  of  a  direct  and, 
therefore,  of  a  superior  nature  is  unattainable.^ 

And  when,  in  the  nature  of  the  case,  direct  evidence  is  not  to 
be  had  there  ought  to  be  no  hesitancy  in  resorting  to  circum- 
stantial evidence  ;  for,  as  has  been  pointed  out,  this  kind  of  evi- 
dence may  be  as  conclusive  as  the  higher  class.  Circumstantial 
evidence  must  generally  be  relied  on  to  establish  adultery.^ 
Direct  proof  is  not  requisite  to  establish  a  conspiracy  :  it  may 
be  shown  by  inference  from  facts  and  circumstances.*    And 

1  Terr.  v.  Egan,  3  Dak.  119. 

2  Stark,  on  Ev.  (10th  Am.  Ed.)  874. 
8  Cooke  V.  Cooke,  152  III.  286. 

*  Grimes  v.  Bowerman,  92  Mich.  458  ;  Redding  v.  Wright,  49  Minn.  323. 


32  RELATIVE  VALUE  OF 

fraud  may  be  as  properly  established  by  circumstantial  evidence, 
as  by  presenting  the  more  positive  and  direct  testimony  of 
actual  purpose  to  deceive.  Indeed,  in  most  cases  circumstantial 
proof  can  alone  bring  fraud  to  light.  Fraud  is  peculiarly  a 
wrong  of  secrecy  and  circumvention,  and  is  to  be  traced  not  in 
the  open  proclamation  of  the  wrong-doer's  purpose,  but  by  the 
indications  of  covered  tracks  and  studious  concealments.  The 
court  or  jury  must  be  cautious  in  deducing  the  fraud. ^ 

The  argument  founded  upon  the  abundance  of  the  circum- 
stances, and  the  consequent  opportunities  of  contradiction 
which  they  afford,  belongs  to  another  part  of  the  subject. 
While  each  of  these  incidents  adds  greatly  to  the  probative 
force  of  circumstantial  evidence  in  particular  cases,  they  have 
clearly  no  connection  with  an  inquiry  into  the  value  of  circum- 
stantial evidence  in  the  abstract.  However  numerous  may  be 
the  independent  circumstances  to  which  the  witnesses  depose, 
the  result  cannot  be  of  a  different  kind  from,  or  superior  to, 
that  strong  moral  assurance  which  is  the  consequence  of  satis- 
factory proof  by  direct  testimony,  and  for  which,  if  such  proof 
be  attainable,  every  tribunal,  every  reasonable  mind,  would 
reject  any  attempt  to  substitute  indirect  or  circumstantial  evi- 
dence, as  inadmissible,  and  as  affording  the  strongest  reason 
for  suspicion  and  disbelief. 

It  has  been  said  that  "  though  in  most  cases  of  circumstan- 
tial evidence  there  be  a  possibility  that  the  prisoner  may  be  in- 
nocent, the  same  often  holds  in  cases  of  direct  proof,  where 
witnesses  may  err  as  to  identity  of  person,  or  corruptly  falsify, 
for  reasons  that  are  at  the  time  unknown."  ^  This  observation 
is  unquestionably  true.  Even  the  testimony  of  the  senses, 
though  it  affords  the  safest  ground  of  moral  assurance,  cannot 
be  implicitly  depended  upon,  even  where  the  veracity  of  the 
witnesses  is  above  all  suspicion.  An  eminent  barrister,  a  gen- 
tleman of  acute  mind  and  strong  understanding,  swore  posi- 
tively to  the  persons  of  two  men,  whom  he  charged  with  rob- 
bing him  in  the  open  daylight.  But  it  was  proved  by  conclusive 
evidence  that  the  men  on  trial  were,  at  the  time  of  the  robbery, 
at  so  remote  a  distance  from  the  spot  that  the  thing  was  im- 

1  Cooley's  Elements  of  Torts,  191.  And  see  Sturm  v.  Chalfant(W.  Va.), 
18  S.  E.  451 ;  Barndtv.  Frederick,  78  Wis.  1 ;  11  L.  R.  A.  199  ;  Gumberg  v. 
Treusch  (Mich.),  61  N.  W.  872. 

2  Burnet,  C.  L.  of  Scotland,  524. 


DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE.  33 

possible.  The  consequence  was  that  they  were  acquitted,  and 
some  time  afterwards  the  robbers  were  taken,  and  the  articles 
stolen  found  upon  them.  The  prosecutor,  on  seeing  these  men, 
candidly  acknowledged  his  mistake,  and  it  is  said  gave  a  rec- 
ompense to  the  persons  he  prosecuted,  and  who  so  narrowly 
escaped  conviction.^  It  is  probable  that  he  was  deceived  by  the 
broad  glare  of  sunlight,  but  there  can  be  no  doubt  of  the  sin- 
cerity of  his  impressions. 

Many  similar  instances  are  upon  record  of  the  fallibility  of 
human  testimony,  even  as  to  matters  supposed  to  be  grounded 
upon  the  clearest  evidence  of  the  senses,  and  where  the  miscon- 
ception has  related  to  the  substantive  matters  of  judicial  in- 
quiry. It  has  been  said  with  the  strictest  philosophical  truth, 
that  "  proof  is  nothing  more  than  a  presumption  of  the  highest 
order."  2  But  these  considerations,  instead  of  establishing  the 
superior  efficacy  of  circumstantial  evidence,  seem  irresistibly  to 
lead  to  the  conclusion  that  it  is,  a  fortiori,  more  probable  that 
similar  misconception  may  take  place  as  to  collateral  facts  and 
incidents,  to  which,  perhaps,  particular  attention  may  not  have 
been  excited. 

There  is  another  source  of  fallacy  and  danger  to  which,  as 
already  intimated,  circumstantial  evidence  is  peculiarly  liable, 
and  of  which  it  is  necessary  to  be  especially  mindful.  Where 
the  evidence  is  direct,  and  the  testimony  credible,  belief  is  the 
inamediate  and  necessary  result ;  whereas,  in  cases  of  circum- 
stantial evidence,  processes  of  inference  and  deduction  are 
essentially  involved,  frequently  of  a  most  delicate  and  perplex- 
ing character,  liable  to  numerous  causes  of  fallacy,  some  of 
them  inherent  in  the  nature  of  the  mind  itself,  which  has  been 
profoundly  compared  to  the  distorting  power  of  an  uneven 
mirror,  imparting  its  own  nature  upon  the  true  nature  of 
things.^  Mr.  Baron  Alderson,  upon  a  trial  of  this  kind,  said : 
"  It  was  necessary  to  warn  the  jury  against  the  danger  of  being 
misled  by  a  train  of  circumstantial  evidence.  The  mind  was 
apt  to  take  a  pleasure  in  adapting  circumstances  to  one  another, 
and  even  in  straining  them  a  little,  if  need  be,  to  force  them  to 
form  parts  of  one  connected  whole ;  and  the  more  ingenious 

1  Rex  V.  Wood  &  Brown,  28  St.  Tr.  819. 

2  Lord  Erskine  in  the  Banbury  Peerage  Case. 

8  Novum  Organuna,  lib.  i.  Aph.  41,  45  ;  Best  on  Presumptions,  255;  and 
see  3  Bentham's  Jud.  Ev.  b.  v.  c.  xv.  §  iv. 
8 


34       VALUE  OF  DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE. 

the  mind  of  the  individual,  the  more  likely  was  it,  in  consider- 
ing such  matters,  to  overreach  and  mislead  itself,  to  supply 
some  little  link  that  is  wanting,  to  take  for  granted  some  fact 
consistent  with  its  previous  theories,  and  necessary  to  render 
them  complete."  ^  Circumstantial  evidence,  therefore,  must 
always  be  scanned  with  great  caution  .^ 

It  may  be  objected  that  the  foregoing  observations  tend  to 
create  distrust  in  all  human  testimony.  While  it  must  be 
admitted  that  the  senses  cannot  be  implicitly  depended  upon, 
it  is  certain  that  their  liability  to  mistake  may  be  greatly 
diminished  by  habits  of  accurate  observation  and  relation. 
The  general  conformity  of  our  impressions  to  truth  and  nature, 
and  the  universal  opinion  and  practice  of  mankind,  establish 
the  reasonableness  and  propriety  of  our  faith  in  testimonial 
evidence.  The  interest  to  which  all  controverted  matters  of 
fact  give  occasion  is  a  manifestation  of  the  preference  in  the 
human  mind  of  truth  to  falsehood  ;  and,  finally,  the  number 
of  mistaken  inferences  from  the  testimony  of  the  senses  is  incon- 
ceivably small,  as  compared  with  the  almost  infinite  number  of 
judgments  which  are  correctly  drawn  from  evidence  of  the 
kind  in  question, 

1  Reg.  V.  Hodges,  3  Lewin's  C.  C.  227. 
»  Dean  v,  Com.,  32  Grat.  918. 


CHAPTER  IV. 

THE  SOURCES  OF  CIRCUMSTANTIAL  EVIDENCE. 

In  the  present  state  of  knowledge  there  can  be  little  danger 
of  mistake  as  to  the  legitimate  subjects  of  human  belief ;  but 
how  melancholy  is  the  degradation  of  the  human  intellect  ex- 
hibited in  the  records  of  superstition,  imposture,  and  delusion, 
of  enthusiasm  and  credulity,  of  judicial  darkness  and  cruelty, 
in  the  pages  of  our  own  history,  as  well  as  in  those  of  every 
other  nation ! 

A  profound  ignorance  of  the  laws  of  nature,  an  inability  to 
account  for  the  origin  of  evil,  and  to  reconcile  its  existence 
with  the  Divine  attributes,  and  the  impulse  to  avenge  wrongs 
for  which  human  institutions  afforded  no  remedy,  led  to  a  uni- 
versal belief  in  the  supernatural  interposition  of  the  Supreme 
Being  on  behalf  of  his  injured  moral  offspring.  Of  this  per- 
suasion, augury,  divination,  judicial  combat,  the  various  forms 
of  trial  by  ordeal,  the  supposed  intimations  of  truth  conveyed 
by  means  of  apparitions  and  dreams,  the  bleeding  of  a  corpse  in 
the  presence  of  the  mm^derer,  and  his  reluctance  to  touch  it,i 
were  thought  to  be  so  many  manifestations ;  while,  with  the 
wildest  inconsistency,  the  belief  was  equally  general  in  the  ex- 
istence and  influence  of  witchcraft,  and  other  modes  of  demon- 
iacal agency  over  the  minds  and  actions  of  men.  The  history 
of  all  nations  affords  lamentable  memorials  of  judicial  murders, 
the  natural  consequences  of  such  mistaken  and  degrading 
views.  Without  adverting  to  other  reasons,  it  is  conclusive 
against  all  departure  by  the  Supreme  Being  from  the  ordinary 
course  of  his  administration,  that  so  many  instances  of  errone- 
ous conviction  and  execution  have  occurred  in  all  ages  and  in 
all  countries. 

The  course  of  external  nature,  and  the  mental  and  physical 
constitution  of  man,  and  his  actions  and  moral  and  mechanical 

1  Rex  V.  Standsfield,  11  St.  Tr.  1403,  and  Rex  v.  Okeman,  14  Id.  1334. 

35 


3G  THE  SOURCES  OF  CIRCUMSTANTIAL  EVIDENCE. 

relations,  are  the  only  true  sources  of  those  facts  which  con- 
stitute circumstantial  evidence. 

In  every  inquiry  into  the  truth  of  any  alleged  fact,  as  to 
which  our  means  of  judgment  are  secondary  facts,  there  must 
exist  relations  and  dependencies,  inseparable  from  the  principal 
fact,  which  will  commonly  be  manifested  by  external  appear- 
ances. No  action  of  a  rational  being  is  indifferent  or  independ- 
ent ;  and  every  such  action  must  necessarily  be  connected  with 
antecedent,  concomitant,  and  subsequent  conditions  of  mind, 
and  with  external  circumstances,  of  the  actual  existence  of 
which,  though  it  may  not  invariably  be  apparent,  there  can  be 
no  doubt. 

A  crime,  so  far  as  it  falls  within  the  cognizance  of  human 
tribunals,  is  an  act  proceeding  from  a  wicked  inoiive  ;  it  follows, 
therefore,  that  in  every  such  act  there  must  have  been  one  or 
more  voluntary  agents ;  that  it  must  have  had  corresponding 
relations  to  some  precise  moment  of  time  and  portion  of  space  ; 
that  there  must  have  existed  inducements  to  guilt,  prepara- 
tions for,  and  objects  and  instruments  of  crime;  these,  the 
acts  of  disguise,  flight,  or  concealment,  the  possession  of  plun- 
der or  other  fruits  of  crime,  and  innumerable  other  particulars 
connected  with  individual  conduct,  and  with  moral,  social,  and 
physical  relations,  afford  materials  for  the  determination  of 
the  judgment. 

In  a  case  depending  on  circumstantial  evidence,  the  mind 
seeks  to  explore  every  source  from  which  any  light,  how- 
ever feeble,  may  be  derived ;  and  the  jury  in  such  a  case  should 
have  before  them  every  fact,  however  slight,  which  may  aid  them 
in  coming  to  a  satisfactory  conclusion. ^  As  jurors  have  become 
more  capable  of  exercising  their  functions  intelligently,  judges, 
both  in  England  and  in  this  country,  have  struggled  to  open  the 
door  as  wide  as  possible,  and  to  let  in  all  facts  calculated  to 
affect  the  minds  of  tlie  jury  in  arriving  at  a  correct  conclusion.^ 
The  nature  of  the  case  in  many  instances  demands  a  greater 
latitude  in  the  presentation  of  the  evidence  of  circumstances 
than  where  a  conviction  is  sought  upon  direct  testimony.^ 

1  Cooper  V.  State,  19  Tex.  449.  See  Noftsinger  v.  State,  7  Tex.  Crim.  App. 
301  ;  Hart  v.  State,  15  Id.  202  ;  Preston  v.  State,  8  Id.  30  ;  Bouldin  v.  State,  8 
Id.  332;  Howardv.  State,8Id.  53;  State  v.  Reno,  67  Id.  587 ;  Stater.  Rhodes 
(N.  C),  15  S.  E.  1038  ;  Holmes  v.  Goldsmith,  147  U.  S.  150  ;  37  L.  Ed.  118. 

'^  Johnson  v.  State,  14  Ga.  55. 

*  Ballew  V.  State,  36  Tex.  98. 


THE  SOURCES  OF  CIRCUMSTANTIAL  EVIDENCE  37 

It  is  of  the  essence  of  justice  that  no  facts  or  circumstances 
shall  be  excluded  from  the  jury  which  have  relation  to  or 
bear  upon  the  principal  fact :  not  facts  which  owe  their  origin 
to  subsequent  events,  but  such  as  were  of  necessity  connected 
with  or  could  have  had  no  existence  except  for  the  principal 
fact.i  It  is  understood  that  when  the  case  is  obscure  and  guilt  is 
to  be  established  by  conclusions  or  presumptions  arising  from 
circumstances,  and  there  is  a  doubt  as  to  the  admissibility  of  evi- 
dence, the  doubt  should  be  resolved  infavorem  vitoe  et  lihertatis!^ 
The  jury  must  be  trusted  to  distinguish  the  significant  from  the 
unimportant  facts  in  a  case.^ 

For  instance,  in  an  action  to  recover  the  value  of  a  horse 
alleged  to  have  been  killed  by  the  defendant,  it  was  relevant  and 
competent  to  show  that  the  defendant  had  some  motive  as  well  as 
an  opportunity  to  kill  the  horse,  by  showing  that  the  horse  was 
in  the  habit  of  trespassing,  and  did,  immediately  before  he  was 
killed,  trespass  upon  the  defendant's  corn  crop> 

On  a  trial  for  the  larceny  of  a  horse,  where  it  was  claimed 
that  the  defendant  had  taken  the  horse  from  the  pasture-field, 
it  having  been  shown  that  the  horse  was  found  in  the  posses- 
sion of  the  defendant,  it  was  held  proper  to  prove  that  the  horse 
had  failed  to  come  to  the  stable  at  night,  as  was  his  habit,  as  a 
slight  circumstance  to  be  taken  in  connection  with  the  other  f  act.^ 

On  an  indictment  for  burglary  it  is  proper  to  be  shoAvn  for 
the  consideration  of  the  jury,  that  the  defendant  knew  there  was 
money  in  the  house.® 

Evidence  tending  to  show  defendant's  presence  near  the 
scene  of  the  homicide  on  the  night  it  occurred  is  admissible  on 
a  trial  for  murder,'  On  a  trial  for  murder  by  drowning  persons 
in  a  boat,  evidence  that  defendant  possessed  an  augur  corre- 
sponding in  size  to  holes  bored  in  the  boat  a  short  time  before 
the  crime  was  committed,  is  admissible.^ 

But  it  would  be  impracticable  to  enumerate  the  infinite  va- 
riety of  circumstantial  evidentiary  facts,  which  of  necessity  are 

1  People  V.  O'Neil,  6  N,  Y.  Cr.  R.  274. 

2  Pharr  v.  State,  9  Tex.  Crim.  App.  129. 

3  People  V.  Bemis,  51  Mich.  422. 

*  Gannon  v.  Stevens,  13  Kan.  447. 

6  Johnson  v.  State,  47  Ala.  62. 

8  State  V.  Kepper,  65  la.  745. 

•^  Reynolds  v.  State  (Fla.),  16  So.  78. 

8  Nicholas  v.  Com.  (Va.),  21  S.  E.  364. 


38  THE  SOURCES  OF  CIRCUMSTANTIAL  EVIDENCE. 

as  various  as  the  modifications  and  combinations  of  events  in 
actual  life.  As  was  well  said  by  an  eminent  philosopher  and 
statesman,  "  All  the  acts  of  the  party,  all  things  that  explain  or 
throw  light  on  these  acts,  all  the  acts  of  others  relative  to  the 
affair,  that  come  to  his  knowledge  and  may  influence  him ;  his 
friendships  and  enmities ;  his  promises,  his  threats,  the  truth  of 
his  discourses,  the  falsehood  of  his  apologies,  pretences,  and 
explanations ;  his  looks,  his  speech,  his  silence  where  he  was 
called  to  speak  ;  everything  which  tends  to  establish  the  con- 
nection between  all  these  particulars ;  every  circumstance,  pre- 
cedent, concomitant,  and  subsequent,  become  parts  of  circum- 
stantial evidence.  These  are  in  their  matter  infinite,  and  can- 
not be  comprehended  within  any  rule,  or  brought  under  any 
classification."  ^ 

13  Burke's  Works,  ut  supra,  633. 


PART  II. 

INCULPATORY  INDICATIONS. 


DIVISION  I. 

INCULPATORY  MORAL  INDICATIONS. 


INTRODUCTORY  REMARKS. 

It  is  not  necessary,  in  a  work  of  this  nature,  nor,  for  reasons 
which  have  been  explained,  is  it  practicable,  to  set  forth  a 
complete  enumeration  of  facts  as  inyariably  conjoined  with 
authoritative  presumptions.  Nevertheless,  in  connection  with 
the  foUo^ving  statement  of  the  general  principles  which  deter- 
mine the  relevancy  and  effect  of  circumstantial  evidence,  there 
will  be  noticed,  by  way  of  illustration,  some  particulars  of 
moral  conduct,  which  have  been  considered,  by  the  tribunals 
which  have  had  occasion  to  consider  their  effect,  as  leading  to 
important  and  well-grounded  presumptions. 

39 


CHAPTER  I. 

MOTIVES  TO  CRIME. 

As  there  must  pre-exist  a  motive  to  every  voluntary  action 
of  a  rational  being,  it  is  proper  to  comprise  in  the  class  of  moral 
indications  such  particulars  of  external  relations  as  are  usually 
observed  to  operate  as  inducements  to  the  commission  of  crime, 
as  well  as  such  indications  from  language  and  conduct  as  more 
directly  and  unequivocally  manifest  a  connection  between  the 
deed  and  the  mind  of  the  actor.  In  strictness  the  word 
"  motive,"  though  popularly  applied  to  denote  the  external 
objects  potentially  calculated  to  act  on  the  mind,  ought  to  be 
limited  to  the  designation  of  such  objects  only  as  have  actually 
influenced  the  will,  as  the  efficient  causes  of  moral  action. 

The  metaphorical  origin  of  this  word  has  given  rise  to  serious 
misconception  as  to  the  nature  of  moral  and  legal  responsi- 
ility,  upon  which  it  is  essential  that  our  conceptions  should  be 
accurate.  From  its  primary  application  to  material  force,  an 
Imaginary  analogy  has  been  supposed  between  the  action  of 
moral  and  physical  agencies.  In  reality,  however,  there  is  no 
resemblance  between  the  fatal  and  irresistible  constraint  of 
mechanical  power  and  the  influence  of  motives  on  the  self- 
orginating  will  of  an  intelligent  and  free  agent.  Man  is  not 
the  passive  subject  of  necessity  or  chance ;  nor  are  his  moral 
judgments  merely  the  abstractions  of  logic ;  on  the  contrary, 
he  is  endowed  with  instincts,  passions,  and  aifections,  and 
above  all  with  reason,  and  the  capacity  of  estimating  the  quali- 
ties and  tendencies  of  his  volitions  and  actions,  and  with  the 
power  of  choosing  from  among  the  various  inducements,  emo- 
tional and  rational,  which  are  presented  to  him,  the  governing 
principles  of  his  conduct.^  Mankind  are  moved  by  certain  pas- 
sions, feelings,  and  motives.     Under  given  circumstances  men 

1  6  Stewart's  Collected  "Works,  349 ;  Cousin,  Cours  de  I'Hist.  de  Philoso- 
phie,  prem.  ser.  tome  4,  Legon  xxi- . 


MOTIVES  TO  CRIME.  41 

will  act  in  a  certain  way,  which  is  indicated  as  ascertained  by 
experience  and  common  sense.i 

These  considerations  constitute  the  foundation  of  moral  and 
legal  responsibility  ;  and  it  follows  from  them,  that  in  all  their 
important  actions  we  naturally,  reasonably,  and  safely  judge 
of  men's  motives  by  their  conduct,  as  we  conclude  from  the 
nature  of  the  stream  the  qualities  of  its  source.  The  various 
springs  by  which  human  motives  are  supplied  are  frequently 
difficult  to  trace.2  It  is  indispensable,  therefore,  in  the  investi- 
gation of  imputed  guilt  to  look  at  all  the  surrounding  circum- 
stances which  connect  the  actor  with  other  persons  and  things, 
and  may  have  operated  as  motives  and  influenced  his  actions. 
And  the  prosecution  may  offer  any  evidence  tending  to  prove  a 
motive  for  the  commission  of  the  crime.^  On  a  trial  for  murder 
whatever  tends  to  show  defendant's  feeling  toward  the  person 
killed  is  admissible.*  All  testimony  tending  to  show  motive  is 
material  to  the  issue.® 

It  is  of  the  essence  of  moral  weakness  that  it  forms  a  mistaken 
estimate  of  present  good,  and  a  want  of  proportion  will,  there- 
fore, of  necessity  be  found  between  the  objects  of  desire  and 
the  means  employed  to  obtain  them.  It  is  impossible  to  see 
the  operations  of  the  human  mind.  The  characters,  instincts, 
and  intents  of  persons  differ  so,  that  what  might  be  an  adequate 
motive  for  one,  for  a  certain  act,  will  not  be  for  another.^  The 
motive  need  not  be  commensurate  with  the  crime.^  The  as- 
sassin's dagger  may  be  put  into  requisition  for  a  few  pieces  of 
gold,  and  the  difference  between  that  and  other  inducements 
to  crime  is  a  difference  only  of  degree.  Indeed,  tried  by  the 
strict  rules  of  morality,  there  can  be  no  such  thing  an  an  ade- 
quate motive  to  the  commission  of  crime. 

The  common  inducements  to  crime  are,  the  desire  of  reveng- 
ing some  real  or  fancied  wrong  ;  ^  of  getting  rid  of  a  rival  ^  or 

1  Ludlow,  P.  J.,  in  Com.  v.  CuUen,  36  Leg.  Int.  252. 

2  Hunter  v.  State,  43  Ga.  483. 

estate  V.  Lackin,  11  Nev.  814  ;  Hart  v.  State,  15  Tex.  App.  202. 

*  People  V.  Kern,  61  Cal.  244  ;  Marler  v.  State,  67  Ala.  55  ;  State  v.  Gooch, 
94  N.  C.  987 ;  Wellar  v.  People,  30  Mich.  16. 

8 Eraser  v.  State,  55  Ga.  325  ;  McCue  v.  Com.,  78  Pa.  St.  185. 

^Platt,  J.,  in  People  v.  Rubenstein,  New  York  Oyer  and  Terminer,  cited 
in  Rice  on  Crim.  Ev.  §  344. 

^  Whart  on  Homicide,  §  670  a  ;  Cheverins  v.  Com.,  8  Crim.  L.  Mag.  760. 

8 Kelly  V.  State,  Dean  v.  Com.,  Breedlove  v.  State,  and  Eraser  v.  State, 
infra.  »  Hunter  v.  State,  infra. 


42  MOTIVES  TO  CRIME. 

an  obnoxious  connection ;  ^  of  escaping  from  the  pressure  of 
pecuniary  or  other  obligation  or  burden  ;  ^  of  obtaining  plunder 
or  other  coveted  object ;  ^  of  preserving  reputation,  either  that 
of  general  character,  or  the  conventional  reputation,  of  pro- 
fession or  sex  ;  *  or  of  gratifying  some  other  selfish  or  malig- 
nant passion. 

That  there  has  been  an  indictment  found  against  the  defend- 
ant's brother  for  theft  from  the  deceased,  is  a  fact  proper  to 
be  shown.^  That  the  defendant  was  indicted  and  punished  at 
the  instance  of  the  deceased  is  material  as  it  goes  to  show  a 
motive  for  anger  expressed  by  the  defendant.^  In  a  recent 
case  where  the  defendant  Avas  tried  for  the  murder  of  A.,  who 
was  shot  from  ambush  while  sitting  on  the  veranda  of  a  house 
with  one  K.,  and  the  theory  of  the  prosecution  was  that  the 
defendant  had  intended  to  shoot  K.,  to  connect  the  defendant 
with  the  crime  and  support  this,  it  was  proved  that  the  defendant 
had  heard  that  K.  had  committed  adultery  with  the  defendant's 
wife.^ 

In  another  case,  the  defendant,  whose  wife  was  dead,  had 
cohabited  illicitly  with  one  of  his  step-children  and  had  sought 
to  marry  her.  The  children  had  all  refused  to  live  with  him 
longer,  and  had  been  sheltered  by  the  deceased.  The  defend- 
ant had  made  many,  but  futile,  efforts  to  get  them  back.  These 
facts  were  admitted  in  evidence.^ 

In  a  recent  case,  where  the  prisoner  was  on  trial  for  the 
murder  of  the  watchman  of  a  mill  in  which  the  defendant  had 
formerly  been  employed,  the  deceased  was  found  lying  in 
his  blood,  with  his  skull  crushed  in,  on  the  floor  of  the  mill, 
and  beside  him  a  pair  of  heavy  tongs  which  were  in  constant 
use  in  the  mill,  and  with  which  the  wounds  had  evidently  been 
inflicted.  The  theory  of  the  prosecution  was  that  the  prisoner, 
while  in  the  mill  at  night  for  a  criminal  purpose,  had  been 

1  State  V.  Moxley,  People  v.  Hendrickson,  Shaw  v.  State,  State  v.  Jones, 
State  V.  Kennedy,  McMeen  v.  Com.,  Pate  i\  State,  Siebert  v.  People,  Mack 
V.  State,  State  v.  Watkins,  People  v.  Kesler,  Wharton  v.  State,  infra. 

2  State  V.  Rainsbarger,  People  v.  Hendrickson,  infra. 
8  Roe  V.  State,  Marion  v.  State,  infra. 

*  State  V.  Posey,  Cheverins  v.  Com.,  infra. 
6  Coward  v.  State,  6  Tex.  Crim.  App.  59. 

6  Kelly  V.  State,  49  Ga.  12.    And  see  Carter  v.  People  (111.),  37  N.  E.  344. 
See  also  Dean  v.  Com.,  32  Grat.  912. 
^Breedlove  v.  State,  26  Tex.  App.  445. 
'Eraser  v.  State,  55  Ga.  325. 


MOTIVES  TO  CRIME.  43 

overtaken  by  the  watchman  going  his  rounds,  and  to  shield 
himself  from  detection  had  killed  the  latter.  And  it  was  per- 
mitted to  be  shown  that  the  accused  had  been  recently  dis- 
charged from  the  mill,  and  that  he  made  threats  of  vengeance, 
and  that  he  had  said  that  if  the  machinery  got  out  of  order  he 
was  the  only  person  in  town  who  could  fix  it. ^ 

It  may  be  shown  in  the  trial  of  one  accused  of  murder  that 
the  defendant  believed  that  a  charge  of  larceny  brought 
against  him  by  the  deceased  was  the  cause  of  his  losing  his 
position.^  So,  also,  that  the  defendant  is  the  paramour  of  a 
woman  whom  the  deceased  assaulted  in  the  defendant's 
presence.^ 

On  the  trial  of  accused  for  the  murder  of  a  slave  circum- 
stances were  allowed  to  be  proved,  as  showing  a  motive  for  the 
crime,  which  tended  to  show  that,  a  short  time  previously,  the 
accused  had  procured  the  murder  of  his  wife  by  the  slave.*  In 
a  trial  for  the  murder  of  a  young  woman,  a  letter  by  the 
prisoner  to  the  deceased  describing  the  seduction  of  a  woman 
was  admitted,  as  tending  strongly  to  show  that  the  accused 
was  the  seducer  of  the  deceased,  where  it  appeared  that  the 
deceased  was  pregnant  at  the  time  of  her  death.^ 

Perhaps  no  motives  are  more  difficult  to  trace  than  those 
having  their  fountainhead  in  envies  and  jealousies  which  agi- 
tate the  human  heart.  Where  the  defendant  was  on  trial  for 
the  murder  of  the  accepted  suitor  of  a  young  Avoman  who  had 
rejected  the  defendant,  for  the  purpose  of  showing  motive  upon 
the  part  of  the  accused,  it  may  be  shown  that  there  Avas  a, 
rumor  of  the  approaching  marriage  of  the  deceased  to  the 
young  woman,  and  that  the  rumor  reached  the  ears  of  the 
defendant.® 

Where  one  is  accused  of  the  murder  of  a  wife,  the  marital 
relation  affords  a  strong  presumption  of  his  innocence.  In  the 
absence  of  proof  to  the  contrary,  it  is  to  be  presumed  that  he 
loves  her  and  will  protect  her.  In  a  case  where  the  evidence 
was  wholly  circumstantial,  and  it  was  shown  on  the  trial  that 
the  accused  had  always  borne  a  good  character,  and  that  he 

1  People  V.  Hand  (Mich.),  Washtenaw  Co.,  Jan.,  1894. 

2  State  V.  Palmer,  65  N.  H.  216. 
estate  V.  Lawlor,  28  Minn.  216. 
*  State  V.  Posey,  4  Strobh.  142. 
^Cheverins  v.  Com.,  8  Cr.  L.  Mag.  760. 
©Hixnter  v.  State,  43  Ga.  483. 


44  MOTIVES  TO  CRIME. 

had  always  lived  with  his  Avife  peaceably  and  happily,  the 
Supreme  Court,  in  reviewing  the  case,  said  that  the  defendant 
was  entitled  not  only  to  the  ordinary  presumption  of  innocence, 
but  to  the  additional  "  and  equally  favorable  presumption  " 
arising  in  consequence  of  the  marital  relations  existing  between 
the  parties.!  j^  jg  important,  therefore,  for  the  prosecution,  if 
it  can,  to  repel  this  presumption  by  proof  that  the  defendant 
has  disregarded  the  claims  of  connubial  duty.  For  this  purpose 
evidence  tending,  however  slightly,  to  show  an  alienation  of 
affection — anything  from  which  a  jury  may  infer  a  desire  to  be 
free  from  the  burden  of  one  who  is  no  longer  the  object  of  his 
regard — is  competent.  Any  conduct  or  declarations  evincing 
unkindness  or  disrespect  are  admissible,  as  tending  to  show 
the  state  of  the  defendant's  feelings  toward  his  wife.^  Where 
one  testified  that  the  two  were  quarrelling  on  the  morning  of 
the  murder,  evidence  was  admissible  to  show  a  bad  state  of 
feeling  always  existing.^  And  it  may  be  proved  that  defendant 
had  previously  asked  his  wife  to  consent  to  a  divorce,  and  she 
had  refused.*  On  the  other  hand,  evidence  that  the  murdered 
wife  had  applied  for  a  divorce  is  admissible,  though  the  allega- 
tions supporting  the  application  may  not  be  shown.^  Proof 
of  their  previous  unhappy  relations,  and  of  his  expressions  of 
discontent,  is  admissible.^  And  where  it  had  been  proved  that 
poison  sent  to  the  deceased  by  her  husband  was  the  cause  of 
her  death,  the  prosecution  was  allowed  to  show  profane 
threats  made  by  him  against  her  a  short  time  previously.''' 

On  a  trial  for  murder,  to  prove  motive,  it  may  be  shoAvn 
that  unlawful  relations  existed  between  the  defendant  and  the 
wife  of  the  deceased  ;  and  this  may  be  shown  by  the  acts  of  the 
parties.^  And  where  a  woman  and  her  paramour  were  on 
trial  for  the  murder  of  the  former's  husband,  evidence  that  the 
defendants  had  been  guilty  of  adultery  during  the  lifetime  of 
the  deceased  was  admitted.*     In  another  case,  where  a  woman 

1  State  V.  Moxley,  102  Mo.  374. 

2  People  V.  Hendrickson,  1  Park.  Cr.  R.  406  ;  State  v.  Moelchen,  53  la.  310  ; 
State  V.  Cole,  63  la.  695. 

3  Shaw  V.  State,  60  Ga.  247. 

4  State  V.  Jones,  3  S.  E.  507. 
ePinckford  v.  State,  13  Tex.  Crim.  App.  468. 
6  State  V.  Kennedy,  77  la.  208. 

T  McMeen  v.  Com.  (Pa.),  5  Cent.  887. 
8  Pate  V.  State,  94  Ala.  14  ;  State  v.  Reed.  53  Kan.  767. 
Siebert  v.  People,  143  111.  571. 


MOTIVES  TO  CRIME. 


45 


was  tried  for  the  murder  of  her  husband,  it  was  shown,  not  only 
that  she  had  been  carrying  on  an  adulterous  intercourse,  but 
that  the  kindly  feelings  ordinarily  existing  between  persons 
sustaining  the  marital  relation  had  ceased  to  exist,  and  that 
she  looked  upon  her  husband  with  hatred  and  contempt.^ 

Proof  that  he  had  been  guilty  of  adultery  would  not  estab- 
lish the  position  that  the  husband  had  done  the  killing,  but  the 
presumption  created  by  the  marital  relation  would  be  repelled, 
and  a  weight  be  given  to  the  other  proof  which  it  would  not 
otherwise  possess.^ 

In  an  early  case  in  New  York  it  appeared  that  the  defendant 
had,  during  the  lifetime  of  his  wife,  made  offers  of  marriage 
to  another  woman  who  had  given  him  "  no  great  encourage- 
ment." From  the  fact  that  this  woman  had  not  emphatically 
discountenanced  his  advances,  it  was  inferred  that  the  onl}'^  ob- 
stacle was  the  existing  marriage.  A  short  time  after  these 
proposals  the  death  of  the  wife  occurred  under  the  following 
circumstances :  After  desertion  of  his  wife  from  the  date  of 
their  marriage  for  about  five  years,  he  appeared  at  the  house 
v\diere  deceased  was  living,  with  offers  of  reconciliation,  and 
took  her  home  under  pretense  of  wishing  to  live  with  her. 
On  their  journey  toward  the  place  where  he  said  he  had  pro- 
cured a  home,  he  led  her  a  distance  from  the  direct  route  to  an 
obscure  tavern  in  an  unfrequented  neighborhood.  Y/hile  at 
this  place  she  was  taken  sick.  The  prisoner  declined  to  send  for 
a  physician  when  strongly  pressed  to  do  so  by  the  family  in 
the  house,  and  refused  offers  of  assistance  and  nursing.  He 
procured  excessive  quantities  of  opium,  and  administered  a 
puke  when  the  deceased  was  apparently  convalescing.  No  one 
but  him  administered  medicine  during  the  illness.  He  affected 
ignorance  of  the  relatives  of  the  deceased,  and  had  her  buried 
in  the  neighborhood  instead  of  carrying  her  body  to  her  rela- 
tives, as  she  had  requested.  The  body  having  been  disinterred 
for  examination,  traces  of  poison  were  found  in  her  stomach. 
The  accused  was  brought  to  trial  and  convicted.^ 

In  another  case,  where  a  conviction  was  had  upon  evidence 
entirely  circumstantial,  the  evidence  showed  that,  about  eigh- 
teen months  before  the  killing,  there  had  been  a  separation  be- 

iMack  V.  State,  48  Wis.  271. 

2  state  V.  Watkins,  9  Conn.  47. 

2  People  V.  Kesler,  3  Wheel.  Cr.  Cas.  18. 


4G  MOTIVES  TO  CRIME. 

tween  the  defendant  and  his  wife,  and  he  had  declared  among 
other  things  that  "  he  did  not  like  her,"  and  "  would  not  live 
with  her."  The  defendant  introduced  evidence  showing  that 
the  marital  relations  were  resumed  a  short  time  before  the 
killing,  and  that  they  were  living  together  at  that  time.  There 
was  no  proof  of  the  extent  or  honafide  of  the  alleged  reconcil- 
iation. These  facts  were  relevant  as  tending  to  prove  a  paci- 
fication, entirely  oblivious  of  past  vindictiveness.  But  the 
jury  were  not  compelled  to  believe  that  such  was  the  case,  and 
an  instruction  was  properly  refused  to  the  effect  that,  "  although 
they  might  believe  from  the  evidence  that,  before  the  killing, 
the  defendant  and  his  wife  separated,  yet  if  they  believed  that 
before  the  killing  they  had  become  reconciled,  and  were  living 
together,  then  the  law  presumes  there  was  no  malice  or  ill-will 
between  the  parties  at  the  time  of  the  killing  from  the  fact  of 
such  separation  and  statements ;  and  the  State  cannot  rely  on 
this  fact  and  statement  to  show  a  motive  in  the  defendant  to 
kill  his  wife,  if  he  did  kill  her."  i 

On  the  trial  of  a  husband  for  the  murder  of  his  wife,  it  may 
be  shown  that  pecuniary  expectations,  which  the  defendant  en- 
tertained by  reason  of  the  marriage,  had  been  disappointed.^ 

There  are  many  instances  of  cases  where  the  presumable 
motive  has  been  to  obtain  the  insurance  on  the  life  of  the  de- 
ceased.2  It  may  be  shown  as  a  motive  for  the  killing  that 
deceased  was  a  burden  on  defendant,  and  that  deceased  carried 
life  insurance  which  defendant  considered  to  be  pledged  to  him 
to  reimburse  him  for  advances.*  "Where  the  defendant  was  on 
ti-ial  for  having  set  fire  to  the'house  in  which  she  lived,  it  Avas 
suggested  as  a  motive  that  she  wished  to  realize  the  insurance 
on  her  furniture.  To  negative  such  a  motive  evidence  was  ad- 
mitted that  the  defendant  was  in  easy  circumstances  and  never 
in  want  of  money .^ 

It  was  lately  held  competent  to  prove  that  shortly  before 
the  accused  and  the  deceased  left  the  town  where  the  deceased 
was  last  seen  alive,  the  accused  had  purchased  from  the  deceased, 
personal  property,  which,  by  the  terms  of  a  contract  entered 

1  Wharton  v.  State,  73  Ala.  366. 

2  People  V.  Hendrickson,  1  Park.  Cr.  R.  406. 

3  Roe  V.  State,  35  Tex.  App.  33. 

4  State  V.  Rainsbarger,  74  la.  196  539. 

^  Reg.  V.  Grant,  4  F.  &  F.  392.  And  see  Farmers'  Ins,  Co.  v.  Gargett,  42 
Mich.  289. 


MOTIVES  TO  CRIME.  47 

into  between  them,  was  to  continue  in  tlie  possession  of  deceased 
until  paid  for  by  the  accused ;  and  that  a  few  days  after  their 
departure  together  the  accused  returned  alone  with  the  prop- 
ei'ty.^  Where  the  theory  of  the  State  was  that  the  murder 
was  committed  to  enable  the  prisoner  to  get  his  brother's  prop- 
erty, evidence  of  their  business  and  social  relations  for  a  rea- 
sonable time  before  was  held  admissible.^ 

When  the  case  depends  on  circumstantial  evidence,  and  the 
circumstances  point  to  any  particular  person  as  the  criminal, 
the  case  against  him  is  much  fortified  by  proof  that  he  had  a 
motive  to  commit  the  crime.^  Says  Roscoe,  speaking  of  the 
crime  of  murder :  "  It  is  but  reasonable,  in  a  case  of  doubt,  to 
expect  that  some  motive,  and  that  a  strong  one,  should  be  as- 
signed as  an  inducement  to  commit  an  act  from  which  our 
nature  is  abhorrent,  and  the  consequence  of  which  is  usually 
so  fatal  to  the  criminal."  ^  It  is  always  a  satisfactory  circum- 
stance of  corroboration  when,  in  connection  with  convincing 
facts  of  conduct,  an  apparent  motive  can  be  assigned.  But,  as 
the  operations  of  the  mind  are  invisible  and  intangible,  it  is 
impossible  to  go  further ;  and  it  must  be  remembered  that 
there  may  be  motives  which  no  human  being  but  the  party 
himself  can  divine.  And,  therefore,  the  prosecution  is  never 
bound  to  establish  an  adequate  motive,^  nor,  indeed,  any  mo- 
tive at  all,  for  the  alleged  crime.  The  fact  of  homicide,  for 
instance,  being  established,  the  inability  to  discover  the  motive 
does  not  disprove  the  crime. 

Kor  must  undue  importance  be  attached  to  external  circum- 
stances supposed  to  be  indicative  of  guilty  motive,  for  there  are 
few  men  to  whom  some  or  other  of  the  forms  of  crime  may  not 
apparently  prove  advantageous.  Neither  ought  the  existence 
of  such  apparent  inducements  to  supersede  the  necessity  for  the 
same  amount  of  proof  as  would  be  deemed  necessary  in  the 
absence  of  all  evidence  of  such  a  stimulus.  Suspicion,  too 
readily  excited  by  the  appearance  of  supposed  inducement,  is 
incompatible  Avith  that  even  and  unprejudiced  state  of  mind 
which  is  indispensable  to  the  formation  of  correct  and  sober 
judgment.     While  true  it  is  that  frequently  "  imputation  and 

1  Marion  v.  State,  20  Neb.  233, 

2Clough  V.  State,  7  Neb.  320.     See  Murphy  v.  People,  63  N.  Y.  590. 

«Earl,  J.,  in  Pierson  v.  People,  79  N.  Y.  43G. 

*Roscoe,  Cr.  Ev.  (8th  Am.  Ed.)  943.        ^McLain  v.  Com.,  99  Pa.  St.  86. 


48  MOTIVES  TO  CRIME. 

strong  circumstances  .  .  .  lead  directly  to  the  door  of  truth," 
it  is  equally  true  that  entirely  to  penetrate  the  mind  of  man  is  out 
of  human  power,  and  that  circumstances  which  apparently  have 
presented  poAverful  motives,  may  never  have  acted  as  such. 
Who  can  say  that  some  "  uncleanly  apprehension,"  some  tran- 
sient thought  of  sinister  aspect,  in  the  dimness  of  moral  light 
momentaril}'^  mistaken  for  good,  may  not  float  unbidden  across 
the  purest  mind  'i  And  how  often  is  it  that  man  has  no  control 
over  circumstances  of  apparent  power  over  his  motives  ? 

It  follows  from  the  foregoing  remarks  that  evidence  of  collat- 
eral facts  which  may  appear  to  have  presented  a  motive  for  a 
particular  action  deserves  per  se  no  Aveight.  With  motives 
merely  the  legislator  and  the  magistrate  have  nothing  to  do ; 

ACTIONS,  AS  THE    OBJECTS    OR    RESULTS    OF   MOTIVES,    are    the    Oulv 

legitimately  cognizable  subjects  of  human  law.  Actus  nonfacit 
reura  nisi  mens  sit  rea  is  a  maxim  of  reason  and  justice  not  less 
than  of  positive  law.^  Motives  and  their  objects  differ,  it  has 
been  remarked,  as  the  springs  and  wheels  of  a  watch  differ 
from  the  pointing  of  the  hour,  being  mutually  related  in  like 
manner.^  But  such  evidence  is  most  pertinent  and  important 
when  clearly  connected  Avith  declarations  which  demonstrate 
that  the  particular  motive  has  passed  into  action,  or  with  in- 
culpatory moral  facts  which  it  tends  to  explain  and  co-ordinate, 
and  which  Avould  otherwise  be  inexplicable.  But  care  must  be 
exercised  not  to  open  too  wide  a  field  for  extrinsic  explanation. 
To  let  in  collateral  facts  the  court  must  be  able  to  perceive 
that  they  tend  naturally  to  elucidate  the  act  or  intent  charged. 
Each  case  must  depend,  in  a  large  degree,  on  its  own  attending 
facts  and  circumstances.^ 

The  particulars  of  external  relation  and  moral  conduct  will 
in  general  correctly  indicate  the  character  of  the  motive  in 
which  they  have  originated.  On  the  other  hand,  the  entire 
absence  of  surrounding  circumstances,  which  on  the  ordinary 
principles  of  human  nature  may  reasonably  be  supposed  to  have 
acted  as  an  inducing  cause,  is  justly  regarded,  whenever  upon 
the  general  evidence  the  imputed  guilt  is  doubtful,  as  affording 
a  strong  presumption  of  innocence.* 

It  occasionally  happens  that  actions  of  great  enormity  are 

13  Inst.  107.  *  Hampden's  Lect.,  nt  supra,  341. 

""  1  Brick.  Dig.  505,  §  823  et  seq.  Durett  v.  State,  72  Ala.  404. 
*  People  V.  Rubenstein,  supra. 


MOTIVES  TO  CRIME.  49 

committed,  for  which  no  apparent  motive  is  discoverable.  It 
must  not  be  concluded,  however,  that  no  pre-existent  motive 
has  operated ;  and  upon  principles  of  reason  and  justice  essential 
to  common  security,  unless  it  is  clearly  and  indubitably  shown 
that  the  actor  is  berefit  of  reason  and  moral  power,  he  is  held 
to  be  legally  accountable  for  his  actions.^  Crimes  the  most 
horrible  are  often  committed  "without  aj)parent  motive  save  to 
gratify  an  inherent  passion  for  wickedness  which  mocks  at 
social  restraint  and  recklessly  defies  the  laws  of  God  and  man. 
"While  in  cases  depending  upon  circumstantial  evidence  the  ex- 
istence or  want  of  motive  is  sometimes  of  vital  importance,  yet 
the  indication  of  the  law  is  not  made  to  rest  upon  so  narrow 
and  frail  a  foundation,  nor  can  the  demands  of  justice  be  met 
and  foiled  by  an  averment  that  no  motive  for  the  prisoner's 
conduct  has  been  made  to  appear.^  But  a  sense  of  injury,  and 
long-cherished  feelings  of  resentment,  may  ultimately  induce 
a  state  of  mind  independent  of  self-restraint,  and  render  their 
victim  the  sport  of  ungovernable  impulses  of  passion  ;  ^  but  the 
distinction  is  e\adent  and  just  between  such  actions  as  are  the 
consequences  of  a  voluntary  abdication  of  moral  control,  and 
actions  committed  under  the  over-mastering  power  of  a  delusion 
of  the  imagination,  which,  though  groundless,  operates  upon 
the  mind  with  all  the  force  of  reality  and  necessity.* 

Lord  Chief  Justice  Campbell,  on  a  trial  for  murder,  thus 
summed  up  the  doctrine  under  discussion :  "  AVith  respect  to  the 
alleged  motive,  it  is  of  great  importance  to  see  whether  there 
was  a  motive  for  committing  such  a  crime,  or  whether  there 
was  not ;  ^  or  whether  there  is  an  improbability  of  its  having 
been  committed  so  strong  as  not  to  be  overpowered  by  positive 
evidence.  But  if  there  be  any  motive  which  can  be  assigned, 
I  am  bound  to  tell  you  that  the  adequacy  of  that  motive  is  of 
little  importance.  AV  e  know,  from  the  experience  of  criminal 
comls,  that  atrocious  crimes  of  this  sort  have  been  committed 
from  very  slight   motives ;   not  merely  from  malice  and  re- 

1  State  V.  Dill,  18  Atl.  763. 

2  People  V.  Robinson,  1  Park,  Cr.  R.  655  ;  Preston  v.  State,  8  Tex.  Crim. 
App.  30. 

3  Rex  V.  Earl  Ferrers,  19  St.  Tr.  885. 

4Rex  V.  Hadfield,  27  St.  Tr.  1281  ;  Rex  v.  Martin,  York  Sp.  Ass.  1831, 
Shorthand  Rep.  by  Fraser  ;  Rex  v.  Offord,  5  C.  &  P.  168. 
6  Lake  v.  People,  1  Park.  Cr.  R.  495, 


50  ■  MOTIVES  TO  CRIME. 

venge,  but  to  gain  a  small  pecuniary  advantage,  and  to  drive 
off  for  a  time  pressing  difficulties."  ^ 

It  is  a  general  rule  for  the  interpretation  of  conduct  as  in- 
dicative of  motives,  demanded  by  social  security  and  founded 
on  substantial  justice,  that  every  man  shall  be  held  to  have 
intended,  and  therefore  to  be  legally  accountable  for,  the 
natural  and  probable  consequences  of  his  actions ;  ^  and  no  one 
can  be  permitted  to  speculate  with  Impunity  upon  the  precise 
extent  to  which  he  may  securely  carry  his  mischievous  inten- 
tions, the  reality  and  degree  of  which  it  is  alike  impossible  to 
determine.  If,  therefore,  the  motive  have  been  to  commit,  not 
the  particular  crime,  but  another  of  equal  legal  degree,  then 
the  maxim  applies  that  in  C7'iminalihus  sufficit  generalis 
TTialitia  intentionis  cum  facto  jpaHs  gradus?  "  All  crimes," 
says  Bacon,  "have  their  conception  in  a  corrupt  intent, 
and  have  their  consummation  and  issuing  in  some  par- 
ticular fact,  which,  though  it  be  not  the  fact  at  which 
the  intention  of  the  malefactor  levelled,  yet  the  law  giveth 
him  no  advantage  of  the  error,  if  another  particular  occur 
of  as  high  a  nature.  Therefore,  if  an  empoisoned  apple 
be  laid  in  a  place  to  empoison  J.  S.,  and  J.  D.  cometh  by 
chance  and  eateth  of  it,  this  is  murder  in  the  principal, 
that  is  actor^  and  yet  the  malice  in  individuo  was  not  against 
J.  D."  *  On  an  indictment  for  disposing  of  a  forged  bank-note 
with  intent  to  defraud,  it  was  held,  that  the  jury  ought  to  infer 
an  intent  to  defraud  the  person  who  would  have  to  pay  the 
instrument  if  genuine,  although  from  the  manner  of  executing 
the  forgery,  or  from  that  person's  ordinary  caution,  it  would 
not  be  likely  to  impose  upon  him,  and  although  the  object  was 
general  to  defraud  whoever  might  take  the  instrument,  and  the 
intention  of  defrauding  the  person  in  particular  who  would 
have  to  pay  the  instrument  if  genuine,  did  not  enter  into  the 
prisoner's  contemplation.^ 

1  Reg.  V.  Palmer,  Shorthand  Report,  308. 

2  Rex  V.  Farrington,  R.  &  R,  209  ;  Rex  v.  Harvey,  2  B.  &  C.  257  ;  Rex  v. 
Dixon,  2  M.  &  S.  11  ;  Hill  v.  Com.,  3  Grat.  594.  Uttering  a  forged  stock- 
receipt  to  a  person  who  employed  the  prisoner  to  buy  stock  to  that  amount 
and  advanced  the  money,  is  sufficient  evidence  of  an  intent  to  defraud  that 
person  ;  and  the  oath  of  the  j^erson  to  whom  the  receipt  was  uttered,  that 
he  believes  the  prisoner  had  no  such  intent,  will  not  repel  the  presumption. 
Rex  V.  Sheppard,  R.  &  R.  C.  C.  169.  »  Bacon's  Max.  Reg.  xv. 

4  Bacon's  Max.  Reg.  xv.  Rex  v.  Mazagora,  R.  &  R.  C.  C.  391. 


MOTIVES  TO  CRIME.  51 

"  In  capital  cases,"  declares  the  high  authority  qnoted  above, 
"  in  favorem  vitcB^  the  law  wiU  not  punish  in  so  high  a  degree, 
except  the  malice  of  the  will  and  intention  appear."  i  The 
malice  necessary  to  constitute  the  crime  of  murder  is  not  con- 
fined to  an  intention  to  take  away  the  life  of  the  deceased,  but 
includes  an  intent  to  do  any  unlawful  act  which  may  probably 
end  in  depriving  the  party  of  life.^  The  mahce  prepense,  says 
Blackstone,  essential  to  murder,  is  not  so  properly  spite  or 
malevolence  to  the  indi\adual  in  particular  as  an  evil  design  in 
general.^  A  blow  with  a  dangerous  weapon  calculated  to  pro- 
duce, and  actually  producing  death,  if  struck  without  such  prov- 
ocation as  reduces  the  crime  to  manslaughter,  is  deemed  by  law 
malicious,  and  the  killing  is  murder.*  But  nevertheless  the  rule 
under  discussion  has  been  extended  beyond  all  reasonable  ap- 
plication, as  where  two  persons  were  convicted  of  lying  in  wait 
and  slitting  the  prosecutor's  nose  with  intent  to  maim  and  dis- 
figure, an  offence  then  capital  by  the  statute  22  &  23  Car.  II., 
c.  1,  though  the  real  intention  was  to  commit  murder  in  order 
to  obtain  an  estate,  an  offence  not  capital,  and  there  was  no 
such  special  intent  as  the  statute  required ;  ^  a  case  which,  as 
extending  a  criminal  law  by  equity,  is  inconsistent  with  the 
general  principles  of  jurisprudence,  and  with  the  spirit  of  many 
later  cases.^ 

1  Bacon's  Max.  Eeg.  vii. 

2  Roscoe,  Cr.  Ev.  (8th  Am.  Ed.)  954 ;  State  v.  Schcenwald,  31  Mo.  147 ; 
Maher  v.  People,  10  Mich.  212.  a  4  Elk.  Com.  199. 

*  U.  S.  V.  McGhee,  1  Curt.  C.  C.  1.  ^  j^^  v.  Coke,  16  St.  Tr.  54. 

6  4  Camp.  Lives  of  the  Lord  Chancellors,  601  ;  Rex  v.  Bell,  Foster's  Dis- 
courses on  Crim.  L.  App,  ;  Rex  v.  Carroll,  3  East  P.  C.  400  ;  Rex  v.  Duffin, 
R.  &  R.  365. 


CHAPTEE  II. 

THE    INTENTION,    AND    DECLARATIONS  AND  ACTS     INDICATIVE 

THEREOF. 


Section  I. 

Consideration  of  the  Principles  Governing  Proof  of  the  Intent. 

Though  malice  is  not  presumed  merely  from  the  fact  of 
killing,  yet  the  circumstances  attending  the  homicide  may  be 
such  as  to  give  rise  to  an  inference  of  malice.^  Intention,  delib- 
eration, and  premeditation  are  operations  of  the  mind,  and 
their  existence  must  be  determined  from  the  facts  and  circum- 
stances of  the  case.  The  inference  is  one  of  fact  only  and  for 
the  jury  .2  Direct  proof  is  not  required,  nor  can  it  be  obtained. 
The  intent  may  be  inferred  from  what  the  party  does  and  says, 
and  from  all  the  circumstances  and  acts  accompanying  the 
crime.  The  character  of  the  evidence  is  never  deemed  to  im- 
pair the  vitality  of  the  proof  .^  On  a  trial  for  homicide  any  facts 
may  be  proved  which  tend  to  show  the  intent  with  which  it 
was  committed.*  But  in  order  that  collateral  facts  may  be 
admitted,  the  court  must  be  able  to  perceive  that  they  tend 
naturally  to  elucidate  the  intent  charged.^  No  strict  rule  can 
be  laid  down  as  to  the  character  or  amount  of  evidence  neces- 
sary to  show  the  existence  of  a  deliberate  and  premeditated 

1  U.  S.  V.  Armstrong,  2  Curt.  C.  C.  446  ;  U.  S.  v.  Mingo,  2  Curt.  C.  C. 
1 ;  Com.  V.  Hawkins,  3  Gray,  463. 

•^  Perry  v.  State,  44  Tex.  473  ;  Murray  v.  State,  1  Tex.  Crim.  App.  417 ; 
People  V.  Conroy,  33  Hun,  119  ;  People  v.  Kelly,  35  Hun,  295. 

3  Booth  V.  Com.  4  Grat.  525;  Padgett  r.  State,  103  Ind.  550;  State 
V.  Woodard,  50  N.  W.  885  ;  State  v.  Teeter,  69  la.  717 ;  State  v.  Munco, 
12  La.  Ann.  625  ;  State  v.  Maxwell,  42  la.  208. 

*  Austin  V.  State,  14  Ark.  555. 

6  1  Brick.  Dig.  §  823  et  seq. ;  Durett  v.  State,  72  Ala.  434. 

52 


THE  INTENTION,  AND  DECLARATIONS  AND  ACTS.  53 

design  to  effect  death.  Each  case  must  depend  on  its  own 
facts  and  circumstances.  One  case  may  be  proved  by  a  long 
train  of  circumstances  and  events ;  another  by  a  few  sharp  and 
startling  facts  ;  and  in  another  the  jury  may  find  in  the  man- 
ner in  which  the  killing  was  done,  the  weapon  used,  the  num- 
ber of  blows  and  wounds,  the  time  and  place  where  effected, 
the  disposition  of  the  victim,  everything  requisite  to  satisfy 
them  of  the  presence  of  deliberation  and  premeditation.^ 


Section  II. 
Threats. 

It  is  very  common  with  persons  who  have  been  engaged,  or 
are  about  to  engage,  in  crime,  to  make  obscure  or  mysterious 
uUusion  to  their  criminal  acts  or  jDurposes,  or  to  boast  to  others 
whose  standard  of  moral  conduct  is  the  same  as  their  own,  of 
what  they  have  done  or  will  do,  or  to  give  vent  to  expressions 
of  revengeful  feelings  ^  or  of  malignant  satisfaction  at  the  accom- 
plishment or  anticipated  occurrence  of  some  serious  mischief. 
Such  declarations  or  allusions  are  of  great  moment  when 
clearly  connected  ])y  independent  evidence  with  some  anterior 
or  subsequent  criminal  action.  And  evidence  of  threats,  gen- 
eral or  special,  or  verbal  indications  of  a  similar  nature,  of 
the  intended  commission  of  a  wrongful  or  criminal  act,  is  ad- 
missible in  criminal  cases.^ 

When  an  act  is  of  such  a  nature  as  not  necessarily  to  imply 
a  guilty  intention,  and  such  intention  is  the  specific  point  in 
issue,  then  the  evidence  of  declarations  by  the  party,  or  of 
collateral  circumstances,  may  be  of  the  last  importance,  as 
explanatory  of  his  motives  and  purposes.  In  regard  to 
declarations  referring  to  former  and  existing  facts,  Lord 
Chief  Justice  Eyre  said  that  "  Such  declarations  are  the 
explanation  and  connection  of  those  facts  which  serve  to 
make  them  intelligible.  What  a  prisoner  has  said  respecting 
a  particular  fact  is  admissible  evidence,  not  in  the  nature  of 

^  See  opinion  of  the  court  in  People  v.  Walworth,  4  N.  Y.  Cr.  R.  355. 
See  also  R.  v.  Jones,  9  C.  &  P.  (38  E.  C.  L.)  258. 
2  Heron  v.  State,  23  Fla.  86. 
8  Culbertson  v.  Hill,  87  Mo.  553  ;  Carver  v.  Heskey,  79  Mo.  509. 


54       THE  INTENTION,  AND  DECLARATIONS 

a  confession,  but  in  evidence  of  the  particular  fact ;  and 
such  dechirations  are,  therefore,  receivable  in  all  cases  what- 
ever, in  order  to  explain  and  to  establish  the  state  of  any 
matter  of  fact  which  is  in  dispute  or  the  subject  of  inquiry'- 
before  a  jury."  ^  After  one  was  indicted  for  an  assault  Avith 
intent  to  kill,  and  before  the  trial  he  said  to  the  injured  party, 
"  I'll  get  you  yet,"  this  was  held  admissible  as  manifesting  the 
defendant's  state  of  feeling,  not  only  at  the  time  of  the  menace, 
but  also  at  the  time  of  the  assault.^  A  prisoner  on  trial  for 
murder  returned  to  the  place  of  the  assault  about  half  an  hour 
after  the  engagement,  and  declared  that  he  had  "  come  to 
kill,"  and  this  was  admitted  on  the  trial  as  tending  to  repel  the 
idea  that  the  fatal  blow  had  been  struck  in  a  sudden  transport 
of  passion.^ 

In  Stewart's  case  *  evidence  was  admitted  that  the  accused 
had  said  that  he  "  hated  all  of  the  name  of  Campbell."  In  a 
recent  case  there  was  proof  of  a  quarrel  a  week  before  the  mur- 
der, and  remark  by  the  defendant,  that  deceased  "  had  treated 
him  that  way  two  or  three  times,  but  that  she  could  never  do 
it  again."  ^  In  another  case,^  the  defendant  and  deceased,  both 
negroes,  had  a  difficulty  a  couple  of  days  before  the  killing, 
when  the  defendant  said  that  he  "  had  killed  two  or  three 
niggers  and  could  kill  another."  In  State  v.  Dickson,''  the 
defendant  had  said,  "  He  shall  not  eat  my  bread  and  meat 
much  longer."  On  a  trial  for  the  murder  of  a  policeman,  a 
witness  was  allowed  to  testify  that  he  had  heard  the  defendant 
say,  two  years  before,  that  he  "  would  kill  any  policeman  who 
tried  to  arrest  him  again."  ^ 

Very  often  the  threat  is  accompanied  by  an  exhibition  of,  or 
reference  to,  a  weapon  which  later  on  becomes  the  instrument 
of  the  crime.  In  Benedict  v.  State,^  the  prisoner,  exhibiting  a 
knife  Avith  which  he  was  charged  with  subsequently  commit- 
ting the  murder,  said  it  would  probably  be  the  death  of  some 

1  Rex  V.  Crossfield,  26  St.  Tr.  215.  2  Walker  v.  State,  85  Ala.  7. 

8  McManus  v.  State,  36  Ala.  285.  And  see  Coverus  v.  Jones,  61  N.  H. 
653.  1  19  St.  Tr.  100. 

5  Johnson  v.  State,  18  Tex.  App.  385. 

^  Jackson  v.  State,  9  Tex.  App.  114. 

T  78  Mo.  438.  8  State  v.  Grant,  79  Mo.  113. 

9  14  Wis.  459.  And  see  Whittaker  v.  Com. ,  13  Ky.  L.  Rep.  504  ;  and  People 
t'.  Palmer,  96  Mich.  580,  where  the  deceased  had  not  only  uttered  threats, 
but  had  exhibited  a  loaded  revolver  which  he  had   recently  purchased. 


AND  ACTS  INDICATIVE  THEREOF.  55 

person  before  the  week  was  out,  as  he  "  had  made  up  his  mind, 
to  kill  a  man." 

But  threats  made  in  general  terms,  by  the  defendant, 
some  time  before  the  homicide,  and  which  applied  to  the 
members  of  his  own  family,  if  to  any  one  in  particular,  were 
wrongly  admitted  when  the  deceased  and  the  defendant  had 
been  on  friendly  terms  till  the  fatal  meeting.^ 

Threats  made  by  the  defendant  against  persons  other  than 
the  one  for  whose  murder  the  defendant  is  on  trial  are  not,  as 
a  general  rule,  admissible.^ 

Threats  against  a  particular  person  with  whom  the  accused 
had  a  quarrel,  might  not  have  any  weight  mth  a  jury  as  to 
the  malice  or  intention  to  kill  another  person  with  whom,  at 
the  time,  he  had  no  quarrel,  and  whom  he  afterwards  kiUed.^ 

On  a  trial  where  the  deceased  was  the  proprietor  of  a  news- 
paper, in  which  had  appeared  an  article  offensive  to  the  defend- 
ant, it  was  held  not  proper  to  admit  evidence  of  a  previous  threat 
by  the  defendant  to  "  get  even  "  with  the  person  whom  he,  at 
the  time,  mistakenly  supposed  to  be  the  author  of  the  article.* 
But  where  one  had  killed  an  officer  while  resisting  arrest, 
the  prosecution  was  allowed  to  show  that  the  defendant  had 
said  that  he  expected  to  be  arrested  by  another  officer,  and, 
exhibiting  a  revolver,  said  that  he  would  let  him  "  hear  from 
this,"  the  threat  being  not  so  much  against  the  latter  officer 
as  against  any  one  who  should  attempt  to  make  the  arrest.* 
And  where  a  conspiracy  has  been  proved  to  kill  the  deceased 
and  others,  threats  made  against  the  latter  are  admissible  on 
the  trial  for  the  murder  of  deceased  alone.^  And  on  the 
trial  of  one  who  was  a  memljer  of  a  mob  by  whom  the 
deceased  was  killed,  threats  made  after  the  killing,  against 
another  person  for  whose  destruction  the  conspiracy  was 
formed,  were  admissible  to  show  the  character  and  object  of 
the  conspiracy."  Threats  made  by  the  defendant  against  a 
railroad  company  are  admissible  on  the  trial  of  an  indictment 
for  an  assault  on  an  employe  of  the  company.  "  It  is  a 
matter  of  common  knowledge,"  said  Judge  Walker,  in  a  case 

1  State  V.  Crabtree,  111  Mo.  136.  2  Carr.  v.  State,  23  Neb.  749. 

8  Abernethy  v.  Com.,  101  Pa.  St.  322. 

*  People  V.  Powell,  87  Cal.  348  ;  11  L.  R.  A.  75. 

6  Palmer  v.  People,  138  111.  356. 

«  Slade  V.  State,  29  Tex.  Crim.  App.  381. 

'  State  V.  McCahill,  72  la.  111. 


56  THE  INTENTION,  AND  DECLARATIONS 

of  this  sort,  "  that  the  business  of  raib^oad  companies  is  con- 
ducted by  their  emplo3^es.  If  threats  are  made  against  such  a 
company,  it  is  for  the  jury  to  determine  from  the  character 
of  the  threats  whether  the  employes  of  the  company  come 
within  their  scope.  The  company  and  its  emplo3^es  are  in  a 
measure  identified,  and  the  carrying  out  of  a  threat  against 
the  company  may  necessarily  involve  peril  to  or  an  assault 
upon  its  employes."  1 

It  may  be  shown  that  one  who  had  made  threats  was  intoxi- 
cated, that  the  jury  may  judge  whether  the  threats  were  the 
deliberate  words  of  a  vicious  man,  or  the  coarse  and  idle  language 
of  a  drunken  man.^  But  the  fact  of  intoxication,  though  it  may 
lessen  the  weight  which  the  jury  will  attach  to  the  threat, 
will  not  render  evidence  of  the  language  incompetent.^ 

The  remoteness  of  threats  against  life  from  the  time  of  the 
homicide  is  a  circumstance  to  be  considered  in  determining  the 
weight  and  effect  to  be  assigned  them.*  But  the  remoteness 
or  nearness  of  time  as  to  threats  pointing  to  the  act  subse- 
quently committed  makes  no  difference  as  to  the  competency 
of  the  testimony.^  And  in  the  various  cases  cited  hereto, 
threats  made  respectively  one  month,^  four  months,^  eight 
months,^  and  three  years,®  before  the  commission  of  the 
offence  charged,  have  been  admitted  for  the  consideration  of 
the  jury. 

And  in  a  late  case,  where  there  was  other  evidence  of  long- 
continued  hostility,  threats  of  the  accused  to  shoot  the 
deceased,  made  thirty  years  before  the  homicide,  were 
admitted.^" 

In  one  case,  where  threats  by  the  prisoner  against  the  life  of 
the  deceased,  during  a  period  of  two  years,  Avere  admitted,  it 
was  well  said  by  the  court  that  long-continued  animosity  and 
ill-will  are  better  evidence  of  a  state  of  mind  which  would 

1  Newton  v.  State,  92  Ala.  33. 

2  People  V.  Eastwood,  14  N.  Y.,  562. 

3  Smith  V.  Com.,  86  Ky.,  June  2,  1887. 

«  Elliott,  J.,  in  Goodwin  v.  State,  96  Ind.  550  ;  4  Crim.  L.  Mag.  565. 

6  Carver  v.  Heskey,  79  Mo.  509 ;  State  v.  Hoyt,  46  Conn.  330  ;  State  v. 
Grant,  79  Mo.  113  ;  Keener  v.  State,  18  Ga.  194 ;  State  v.  Ford,  3  Strobh. 
517  ;  State  v.  Bradley  (Vt.),  32  Atl.  238 ;  64  Vt.  460. 

6  State  V.  Campbell  (S.  C),  Jan.  7,  1892  ;  People  v.  Lyons,  17  N.  E.  791. 

T  Pate  V.  State,  supra.  »  State  v,  Bradley,  64  Vt.  466. 

9  Peterson  v.  Toner,  80  Mich.  550. 

1"^  Goodwin  v.  State,  siqira. 


AND  ACTS  INDICATIVE  THEREOF.  57 

ripen  into  deliberate  murder   than   the   hasty  ebullition   of 
passion. 1 

But  evidence  of  such  language  cannot  dispense  with  the 
obligation  of  sufficient  proof  of  the  criminal  facts ;  for,  though 
malignant  feehngs  may  possess  the  mind,  and  lead  to  intem- 
perate and  criminal  expressions,  they  nevertheless  may  exer- 
cise but  a  transient  influence,  Avithout  leading  to  action.^  It 
must  be  borne  in  mind,  too,  as  in  regard  to  the  proof  of  lan- 
guage in  general,  that  declarations  may  be  obscure  in  them- 
selves, or  imperfectly  remembered,  and  that  witnesses  may 
speak  without  a  strict  and  due  regard  to  truth.^  "  Words," 
says  Mr.  Justice  Foster,  "are  transient  and  fleeting  as  the 
wind;  they  are  frequently  the  effect  of  sudden  transport, 
easily  misunderstood,  and  often  misreported."  *  It  has  been 
well  remarked  that,  "  Mere  threats  often  proceed  from  tempo- 
rary irritation  without  deep-rooted  hostility.  They  indicate  a 
rash  and  unguarded,  rather  than  a  determinedly  malignant, 
character ;  and  the  very  utterance  of  them,  as  every  one  well 
knows,  tends  to  defeat  their  execution.  The  man  who  has 
resolved  on  a  crime  is  more  apt  to  keep  his  purpose  to  himself, 
or  to  confide  it  to  an  associate,  under  the  seal  of  secrecy.  Even 
the  most  wary,  however,  sometimes  let  their  wicked  purposes 
peep  out  accidentally  in  the  freedom  of  companionship,  or  the 
weakness  of  drunken  confidence.  When  such  unguarded  hints, 
dark  and  apparently  unmeaning  at  the  time,  coincide  with  the 
subsequent  tokens  of  guilt,  they  are  strong  cords  in  the  net  of 
criminating  evidence."  ^ 


Section  III. 

Evidence  of  Previous  Attempts  and  other  Crimes. 

It  is  not  permitted  in  explanation  of  a  party's  motive  to  give 
evidence  of  a  distinct  and  different  offence  committed  against 
another  person,  unconnected  with  and  unrelated  to  the  particular 

^  Jeflferds  v.  People,  5  Park.  Cr.  Rep.  522.  See  further  on  this  point, 
Terr.  v.  Roberts,  9  Mont.  12  ;  Babcock  v.  People,  13  Col.  515. 

2  3  Benth.  Jud.  Ev.  b.  5,  c.  4. 

3  Per  Dallas,  J.,  in  Rex  v.  Turner,  30  St.  Tr.  1132. 
^  Foster's  Cr.  L.,  id  supra.  Disc.  1. 

5  1  Dickson's  L.  of  Ev.  in  Scotland,  157. 


58  THE  INTENTION,  AND  DECLARATIONS 

act  in  question.^  It  is  not  proper  to  raise  a  presumption  of 
guilt  on  the  ground  that,  having  committed  one  crime,  the 
depravity  it  exhibits  makes  it  likely  he  would  commit 
another.2  It  is  a  well-settled  rule  of  the  criminal  law  that  the 
general  character  of  a  defendant  cannot  be  shown  to  be  bad 
unless  he  shall  first  attempt  to  prove  it  otherwise.  It  on';] it 
not  to  be  assailed  indirectly  by  proof  of  misconduct  in  other 
transactions,  even  of  a  similar  description.^ 

It  is  of  the  utmost  importance  to  the  accused  that  the  facts 
laid  before  the  jury  shall  consist  exclusively  of  the  trans- 
actions which  form  the  subject  of  the  indictment,  and  which 
alone  he  can  be  expected  to  come  prepared  to  answer.  It  is 
not  just  to  him  to  require  him  to  answer  for  two  offences 
w^hen  he  is  indicted  for  one,  and  thus  to  blacken  his  character 
and  to  create  impressions  on  the  minds  of  the  jury  unfavorable 
to  his  innocence.*  Therefore  it  was  held  that  it  was  not  com- 
petent for  the  prosecutor,  in  proof  of  the  guilty  knowledge  of 
the  prisoner,  to  give  in  evidence  that,  at  a  time  ]3revious  to  the 
receipt  of  the  prosecutor's  goods,  he  had  in  his  possession 
other  goods  of  the  same  sort  as  those  mentioned  in  the  indict- 
ment, but  belonging  to  a  different  owner,  and  that  such  goods 
had  been  stolen  from  such  owner.^  Lord  Chief  Justice  Camp- 
bell said  that  "  the  law  of  England  does  not  allow  one  crime  to 
be  proved  in  order  to  raise  a  probalDility  that  another  crime 
has  been  committed  by  the  perpetrator  of  the  first.  The  evi- 
dence did  not  tend  to  show  that  the  prisoner  knew  that  the 
particular  goods  were  stolen  at  the  time  he  received  them." 

On  a  trial  for  stealing  a  watch,  evidence  was  introduced,  to 
prove  the  intent,  to  show  that  the  prisoner  had  taken  a  cloak 
from  another  person.  In  this  case  a  new  trial  was  awarded.^ 
In  an  English  case  the  prisoner  was  charged  with  obtaining  a 
specific  sum  of  money  from  one  Hirst  by  false  pretences.  He 
was  employed  to  take  orders,  but  was  forbidden  to  receive 
moneys,  and  he  was  proved  to  have  obtained  the  sum  from 
Hirst  by  representing  that  he  was  authorized  to  receive  it. 
Evidence  was  then  admitted  of  his  having,  within  a  week  from 

1  Barton  v.  State,  18  Ohio,  221. 

2  Shaflfner  v.  Com.,  72  Pa.  St.  60  ;  Jordan  v.  Osgood,  109  Mass.  457. 
8  State  V.  Lapage,  57  N.  H.  245. 

*  Trogdon  v.  Com.,  31  Grat.  862.  ' 

6  Reg.  V.  Oddy,  20  L.  J.  M.  C.  198,  and  5  Cox's  C.  C.  210. 

6  Walker  v.  Com.,  1  Leigh,  574. 


AND  ACTS  INDICATIVE  THEREOF.  59 

the  above  obtaining,  obtained  another  sum  of  money  from 
another  person,  by  a  similar  pretence.  But  it  was  held  by  the 
Court  of  Criminal  Appeals  that  such  evidence  was  not  admis- 
sible to  prove  the  intent  of  the  prisoner  when  he  committed 
the  act  charged.! 

In  a  recent  case  in  Massachusetts  the  defendant  was  indicted 
for  false  pretences  made  in  the  sale  of  a  horse,  and  the  govern- 
ment was  permitted  to  offer  in  evidence  the  circumstances  and 
details  of  three  other  sales  made  to  different  parties  within  a 
short  time  previously  to  the  one  which  was  the  subject  of  the 
indictment,  and  the  parties  to  such  sales  were  permitted  to 
testify  that  the  pretences  made  by  the  defendant  at  each  of 
these  sales  as  to  both  soundness  and  kindness  of  the  horses 
were  false.  This  evidence,  though  limited  in  the  instructions  to 
the  sole  purpose  of  showing  the  intent  with  which  the  sale 
charged  in  the  indictment  was  made,  was  held  to  have  been 
improperly  admitted.^ 

But  to  this  rule  there  are  exceptions ;  and,  indeed,  as  was 
said  in  a  late  case,  when  we  examine  the  cases  bearing  upon 
the  question,  it  is  difficult  to  determine  which  is  the  more  ex- 
tensive, the  doctrine  or  the  acknowledged  exceptions.^ 

Lord  Ellenborough,  delivering  the  opinion  in  a  leading  crim- 
inal case,*  said  :  "  If  several  distinct  offences  do  intermix  and 
blend  themselves  with  each  other,  the  detail  of  the  parties'  whole 
conduct  must  be  pursued.  There  is  a  case  where  a  man  com- 
mitted three  burglaries  in  one  night,  and  stole  a  shirt  at  one 
place  and  left  it  at  another ;  and  they  were  all  so  connected 
that  the  court  heard  the  history  of  the  three  different 
burglaries." 

In  a  recent  English  case  the  prisoner  was  indicted  for  the 
murder  of  one  H.,  and  there  Avas  another  indictment  pending 
against  him  for  feloniously  wounding  W.  The  facts  were 
these :  The  prisoner,  a  pawnbroker's  assistant  out  of  employ- 
ment, after  having  spent  the  evening  in  the  company  of  a  friend 
in  different  saloons,  started  home  alone.  Between  12.30  and 
1.45  A.  M.  he  was  seen  going  along  a  certain  road  in  the  direc- 

1  Reg.  V.  Holt,  8  Cox  C.  C.  411.  2  Qq^-^  ^,  Jackson,  132  Mass.  16. 

3  Ti-ogdon  V.  Com.,  siqyra. 

*  King  V.  Whitney,  1  Lead.  Cr.  Cas.  185.  And  see  2  Russ.  Cr.  775  et  seq. ; 
Reg.  V.  Blaesdale,  2  C.  &  L.  765 ;  Mason  v.  State,  42  Ala.  532 ;  Walker  v. 
Com.,  1  Leigh,  574. 


60  THE  INTENTION,  AND  DECLARATIONS 

tion  of  a  hospital.  At  the  latter  hour  H.  was  seen  asleep  near 
the  doorway  of  the  hospital.  At  2.10  a.  m.  H.  was  found 
bleeding  of  a  wound  in  the  neck,  of  which  he  shortly  afterwards 
expired.  About  an  hour  later  the  prisoner  was  seen  to  ap- 
proach W.,  who  was  sleeping  a  short  distance  from  the  hospital, 
and  strike  her  on  the  head.  Being  pursued  and  taken,  there 
was  found  in  his  pocket  a  penknife,  the  blade  of  which,  and  a 
quarter  of  an  inch  of  the  handle,  were  smeared  with  blood. 
The  wound  inflicted  on  W.  was  a  small  cut  at  the  entrance  to 
the  ear,  which  had  severed  an  artery.  H.  had  died  from  a  wound 
in  the  neck,  severing  the  carotid  artery  and  entering  the 
pharynx.  The  medical  witnesses  examined  said  that  all  the 
wounds  might  have  been  produced  by  the  knife  found  on  the 
prisoner,  and  one  of  them  said  that,  the  wounds  of  W.  being 
superficial,  the  blood  on  the  knife  could  not  be  accounted  for 
in  that  way.  The  prosecutor,  in  opening  the  case,  proceeded 
to  narrate  the  circumstances  of  the  attack  on  W.,  but  the 
prisoner's  counsel  objected,  submitting  that  this  was  irrelevant, 
and  that  it  was  not  competent  to  give  evidence  of  a  felony 
other  than  that  charged  in  the  indictment,  unless  it  was  im- 
possible to  describe  one  without  going  into  the  other.  Charles, 
J.,  held  that  the  facts  proposed  to  be  detailed  were  necessary 
to  explain  the  case,  and  that  they  ought  to  be  admitted  as 
"  facts  explaining  relevant  f acts.'^  ^  On  a  trial  for  the  larceny 
of  a  rifle  which  the  defendant  had  borrowed  under  the  pretence 
of  going  a-hunting,  evidence  that  the  prisoner  at  the  same  time 
hired  a  horse,  saying  that  he  was  going  to  a  neighboring  town, 
but  that  he  went  off  in  an  opposite  direction  and  sold  the  horse, 
was  held  admissible  to  show  the  intention  with  which  the  gun 
was  borrowed.2 

It  would  be  a  singular  rule  of  law  that  a  person  accused  of  a 
grave  crime  could  compel  the  exclusion  of  important  and  rele- 
vant testimony  merely  by  committing  two  felonies  at  the  same 
time,  or  so  nearly  and  intimately  connected  that  the  one  could 
not  be  proven  without  also  proving  the  other.  Where  the 
defendant  was  accused  of  the  theft  of  a  horse  and  was  traced 
by  wagon  tracks,  a  witness  testified  that  he  had  seen  the 
wagon,  and  as  to  peculiarities  of  its  running,  and  then  that  the 
doubletrees  on  the  wagon  were  the  property  of  the  witness.^ 

1  Reg.  v.  Crickmer,  16  Cox  C.  C.  701.     See  Stephen's  Dig.  C.  2,  Art.  9. 

2  White  V.  State,  11  Tex.  769.  a  State  v.  Folwell,  14  Kan.  105. 


AND  ACTS  INDICATIVE  THEREOF.  61 

And,  says  Roscoe,  "  the  notion  that  it  is  in  itself  an  objection 
to  the  admission  of  evidence  that  it  discloses  other  offences, 
especially  where  they  are  the  subject  of  indictment,  is  now  ex- 
ploded 1  (as  has  been  made  clear  by  several  of  the  foregoing 
illustrations).  The  circumstantial  connection  between  facts  of 
a  criminal  nature  may  be  so  intimate  as  to  require  proof  of 
them  all.  And  the  prosecutor  may  show  motive,  purpose,  prep- 
aration, or  concealment,  though  it  involves  proof  of  a  distinct 
crime.  And  such  evidence  is  received  to  show  identity  of  per- 
son, local  proximity,  or  other  facts  calculated  to  connect 
defendant  with  the  commission  of  the  crime.^  Evidence  which 
tends  to  prove  the  commission  of  the  crime  charged  is  not  in- 
competent merely  because  it  tends  to  prove  the  commission  by 
the  defendant  of  another  crime,  when  such  evidence  goes  to 
the  question  of  motive,  intent,  or  guilty  knowledge,  or  relates 
to  a  plan  by  which  the  accused  procured  the  crime  to  be  com- 
mitted.2  On  a  trial  for  murder,  evidence  of  criminal  intimacy 
between  defendant  and  the  wife  of  the  deceased,  of  which  the 
deceased  had  knowledge,  is  admissible  to  show  motive  in 
defendant  for  the  crime.*  And  upon  the  issue  whether  the 
acts  charged  against  him  were  designed  or  accidental,  or  to 
rebut  a  defence  otherwise  open  to  him,  evidence  tending  to 
show  other  criminal  acts  by  the  defendant  is  admissible.^  On 
a  trial  for  murder  by  drowning  the  deceased  in  a  boat,  evidence 
that  defendant  had  previously  tried  to  poison  the  deceased  was 
held  admissible  to  rebut  the  theory  of  accident.^ 

Express  declarations  of  intention,  or  confessions,  are  com- 
paratively rare ;  and  therefore  all  the  circumstances  of  the 
defendant's  situation,  conduct,  speech,  silence,  or  motives  may 
be  considered.  The  plan  itself,  and  the  acts  done  in  pursuance 
of  it,  may  all  be  proved  by  circumstantial  evidence,  if  they 
are  of  themselves  relevant  and  material  to  the  case  on  trial. 
In  such  a  case  it  makes  no  difference  whether  the  preliminary 
acts  are  criminal  or  not.  It  is  sometimes  said  that  such  evi- 
dence may  be  introduced  where  the  several  crimes  form  part 
of  one  entire  transaction ;  but  it  is  perhaps  better  to  say  where 

1  Roscoe  Cr.  Ev.  (8th  Am.  Ed.)  138.     And  see  Tliomas  v.  State,  103  Ind. 
419.  2  state  v.  Kelly  (Vt.),  27  Atl.  203  ;  37  Cent.  L.  J.  373. 

8  State  V.  Madigan,  57  Minn.  425. 

*  State  V.  Reed,  53  Kan.  767 ;   State  v.  Phelps  (S.  D.),  59  N.  W.  471. 
s  Makin  v.  New  South  Wales  (L.  R.  1894),  A.  C.  57. 
6  Nicholas  v.  Com.  (Va.),  21  S.  E.  364. 


62  THE  INTENTION,  AND  DECLARATIONS 

they  have  some  connection  with  each  other,  as  a  part  of  the 
same  plan  or  induced  by  the  same  motive.  Precedent  acts 
which  render  the  commission  of  the  crime  charged  more  easy, 
more  safe,  more  certain,  more  effective  to  produce  the  ultimate 
result  which  formed  the  general  motive  and  inducement,  if 
done  with  that  intention  and  purpose,  have  such  a  connection 
with  the  crime  charged  as  to  be  admissible,  though  they  are 
also  of  themselves  criminal.^  For  example,  adulterous  inter- 
course may  be  proved  as  a  circumstance  leading  to  the  commis- 
sion of  a  crime.2  And  evidence  of  familiarities  on  former  oc- 
casions is  admissible  to  corroborate  other  evidence  tending  to 
show  a  commission  of  the  act  of  adultery  at  a  particular  time.^ 
But  testimony  of  adulterous  conduct  of  defendant  subsequently 
to  the  commission  of  incest  for  which  he  is  being  tried  cannot 
be  considered  as  having  a  bearing  upon  the  question 
of  his  guilt  of  the  crime  charged.^  Though  acts  prior 
and  also  subsequent  to  the  act  charged  in  the  indict- 
ment, when  indicating  a  continuousness  of  illicit  inter- 
course, are  admissible  in  evidence  as  showing  the  relation 
and  mutual  disposition  of  the  parties.  The  reception  of  such 
evidence  must  be  largely  controlled  by  the  judge  who  tries  the 
case,  and  the  evidence  should  be  submitted  to  the  jury  with 
proper  explanation  of  its  purpose  and  effect.^ 

Where  the  prisoner  was  indicted  for  the  murder  of  one  F., 
her  brother-in-law,  by  poisoning,  to  prove  a  motive  for  the 
crime  it  was  shown  that  F.  was  insured  in  favor  of  his  wife, 
and  that,  on  the  decease  of  the  latter,  a  short  time  before 
F.'s  death,  he  named  the  defendant  beneficiary  in  place  of  his 
wife.  It  was  noted  that  if  evidence  should  be  introduced 
tending  to  show  that  the  defendant  knew,  before  her  sister's 
death,  of  the  existence  of  the  insurance,  and  that  it  could  be 
transferred  on  the  death  of  her  sister  to  herself,  and  made 
payable  to  herself  on  the  death  of  her  brother-in-law;    and 

'  See  opinion  in  Com.  v.  Robinson,  6  N.  Eng.  217. 

2  Com.  V.  Terrigan,  8  Wright,  386  ;  Turner  v.  Com.,  86  Pa.  54;  State  v. 
Watkins,  9  Conn.  47. 

3  State  V.  Wallace,  9  N.  H.  515  ;  Com.  v.  Merriam,  14  Pick.  518  ;  State 
V.  Clawson,  32  Mo.  App.  93  ;  Com.  v.  Bell  (Pa.),  36  W.  N.  C.  146  ;  31  Atl. 
123  ;  People  v.  Patterson  (Cal.),  36  Pac.  436. 

*  See  Porath  v.  State  (Wis.),  63  N.  W.  1061 ;   People  v.  Fowler  (Mich.),  62 
N.  W.  572. 
6  State  V.  Witham,  72  Me.  531. 


AND  ACTS  INDICATIVE  THEREOF.  ^3 

that  she,  before  her  sister's  death,  had  formed  in  her  ovm. 
mind  a  plan  or  intention  to  obtain  this  insurance  for  her  own 
benefit,  and  this  plan  or  intention  continued  to  exist  and  be 
operative  up  to  the  time  of  the  death  of  her  brother-in-law, 
then  evidence  might  be  offered  that  her  sister  died  of  poison, 
and  that  the  defendant  administered  it  as  a  part  of  the  method 
employed  by  her  to  carry  this  plan  or  intention  into  effect,  in 
connection  with  evidence  that  she  administered  poison  to  her 
brother-in-law  as  another  part  of  the  same  plan  or  intention.^ 

On  trial  of  an  indictment  for  obtaining  money  under 
false  pretences,  letters  written  by  one  defendant  to  another, 
some  concerning  the  transaction  in  question,  were  put  in  evi- 
dence to  show  that  the  defendants  were  carr^ang  on  a  general 
swindling  business,  and  to  show  the  entu-e  history  of  the  fraud.2 
A  single  act  or  representation  would  not,  in  many  cases,  be 
decisive,  especially  where  the  accused  has  sustained  a  previously 
good  character.  But  where  it  is  shown  that  he  made  similar 
representations  about  the  same  time  to  other  persons,  and 
by  means  of  such  representations,  all  of  which  were  false, 
obtained  goods,  the  presumption  is  greatly  strengthened  that 
he  intended  to  defraud.^  And  where  a  conspiracy  to  defraud 
is  alleged,  other  fraudulent  purchases  than  these  set  out  in  the 
indictment,  made  about  the  same  time  and  in  pursuance  of  the 
conspiracy,  are  admissible  for  the  purpose  of  showing  the 
intent  with  which  the  goods  were  purchased.* 

Still  gTcater  caution  has  been  observed  in  framing  the  rule 
in  Pennsylvania,  where  it  has  been  said  that  to  make  one 
criminal  act  evidence  of  another,  a  connection  between  them 
must  have  existed  in  the  mind  of  the  actor,  linking  them  to- 
gether for  some  purpose  he  intended  to  accomplish  ;  or  it  must 
be  necessary  to  identify  the  person  of  the  actor,  by  a  connec- 
tion which  shows  that  he  who  committed  the  one  must  have 
done  the  other.^ 

Where  an  act  is  shown  to  have  been  done  b}'"  a  party 
entrusted  with  money,  and  the  inquiry  is  whether  it  was  an  act 

1  Com.  V.  Robinson,  s^qtra. 

2  Com.  V.  Blood,  3  N.  Eng.  393.  See  Com.  v.  Choate,  105  Mass.  451  ; 
Com.  V.  Scott,  123  Mass.  223. 

3  Trogdon  v.  Com.,  31  Grat.  802. 

*  Rex  V.  Roberts,  1  Camp.  399  ;  Com.  v.  Eastman,  1  Cush.  189  ;  Bottomley 
V.  U.  S.,  1  Story.  135. 

6  Shaflfner  v.  Com.,  73  Pa.  St.  60. 


64  THE  INTENTION,  AND  DECLARATIONS 

of  embezzlement,  other  similar  acts  in  the  conduct  of  the  same 
business  are  admissible  as  showing  his  criminal  intent.^ 

On  the  principle  of  these  cases,  it  has  been  provided  by 
statute  in  England,  that  the  prosecutor  may  give  evidence  of 
any  number  of  distinct  acts  of  embezzlement,  not  exceeding 
three,  committed  against  the  same  master,^  or  of  larceny  com- 
mitted against  the  same  person  ^  respectively  within  six 
calendar  months  from  the  first  to  the  last  of  such  acts ;  and  by 
St.  2  Wm.  ly.  c.  34,  §  7,  any  person  uttering  counterfeit  coin, 
and  having  in  his  possession  at  the  same  time  one  or  more 
pieces  of  counterfeit  coin,  or  who  either  on  the  day  of  such 
uttering,  or  within  ten  days,  shall  utter  other  counterfeit  coin, 
is  made  guilty  of  a  much  more  aggravated  offence  than  that 
of  simply  uttering  base  coin. 

AVhere,  in  a  recent  case,  there  were  three  charges  of  embezzle- 
ment in  one  indictment,  it  was  held  that  the  jury  were  properly 
told  that  they  might  lawfully  consider  the  conduct  of  the 
prisoner  in  relation  to  the  matter  referred  to  in  all  the  counts 
when  considering  any  one  of  them,  in  order  to  determine 
whether  the  prisoner  had  failed  to  pay  over  the  money  acci- 
dentally or  fraudulently.* 

And  where,  upon  the  trial  of  a  man  for  setting  fire  to  a  stack 
of  straw,  it  appeared  that  it  had  been  set  on  fire  by  his  having 
fired  a  gun  very  near  to  it,  evidence  was  admitted  that  the 
stack  had  been  set  fire  to  the  day  before,  and  that  the  prisoner 
was  very  near  to  it  with  his  gun  at  the  same  time  ;  ^  and  in  a 
similar  case,  Mr.  Justice  Patterson  admitted  evidence  of  the 
prisoner's  presence  and  demeanor  at  incendiary  fires  of  other 
ricks,  the  property  respectively  of  two  other  persons,  which 
occurred  the  same  night,  although  those  fires  were  the  subjects 
of  other  indictments  against  the  prisoner ;  but  the  learned 
judge  held  that  evidence  could  not  be  given  of  threats,  state- 
ments, and  particular  acts  pointing  alone  to  such  other  charges, 
and  not  tending  to  explain  the  conduct  of  the  prisoner  in 
reference  to  the  fire  in  question.^  So  in  a  later  case  where  the 
prisoner  was  accused  of  arson  and  the  question  became  one  of 

1  Rex  V.  Ellis,  6  B.  &  C.  145  ;  Reg.  v.  Ricliardson,  2  F.  &  F.  343  ;  Com. 
V.  Tuckeman,  10  Gray,  173  ;  Com.  v.  Shepard,  1  Allen,  575. 

2  7  &  8  Geo.  IV.  c.  29,  §  48.  3  i4  &  15  Vict.  c.  100,  §  18. 
"  Reg.  V.  Stephens,  16  Cox  C.  C.  387. 

6  Reg.  V.  Dossett,  2  C.  &  K.  306,  coram  Maule,  J. 
«  Reg.  V.  Taylor,  5  Cox  C.  C.  133. 


AND  ACTS  INDICATIVE  THEREOF.  65 

identity,  evidence  was  rejected  to  show  that  a  few  days  before 
another  building  of  the  prosecutor's  was  on  fire  and  the  prisoner 
was  seen  standing  by,  evincing  signs  of  gratification,  and  inter- 
fered with  another  who  would  have  put  the  fire  out.^  In 
delivering  the  opinion  in  this  case,  Willes,  J.,  took  occasion  to 
affirm  the  principle  laid  do^\'Ti  above,  citing  the  cases  mentioned 
in  the  notes. 

On  a  trial  for  arson  with  intent  to  defraud  insurance  com- 
panies, evidence  was  admitted  that  the  prisoner  had  made  claims 
in  insurance  companies  with  respect  to  two  other  fires  which 
had  occurred  in  houses  successiveh^  occupied  by  him.  The 
nature  of  the  fires  was  not  proved,  nor  their  cause ;  nor  was 
there  any  proof  that  the  prisoner  was  in  or  near  either  of  the 
houses,  or  that  he  was  in  England  at  the  time  when  the  fires 
occurred.2 

A  defendant  was  convicted  of  the  crime  of  arson,  and  it  was 
shown  on  the  trial  that  the  watch-doo;  had  died  from  eating; 
meat  with  strychnine  on  it,  and  that  the  defendant  having 
been  arrested  for  stealing  a  chicken  from  a  barn  where  he  had 
slept  that  night,  there  were  found  in  his  possession  two  pieces 
of  meat  poisoned  by  strychnine  and  tied  with  twine  similar  to 
twine  found  in  the  stomach  of  the  dog  and  to  that  around 
pieces  of  meat  found  in  the  yard  on  the  morning  after  the 
fire.  This  testimony  was  all  objected  to,  but  the  Supreme 
Court  affirmed  the  judgment.  In  the  course  of  the  opinion  it 
was  said :  "  If  the  only  object  was  to  prove  that  the  defendant 
committed  these  crimes  [larceny  of  the  chicken  and  poisoning 
of  the  dog]  J  the  evidence  would  have  been  improper,  except  to 
show  a  motive  for  the  commission  of  the  crhne  charg-ed.  It 
was  proper  to  show  that  the  defendant  poisoned  the  watch- 
dog, as  this  might  imply  malice  towards  the  owner,  and  fur- 
nish a  motive  for  the  arson.  Or  the  doo;  mig'ht  have  been 
killed  to  prevent  an  alarm  before  the  consummation  of  the  crime 
or  detection  afterwards.  The  killing  of  the  dog  by  poisoned 
meat,  and  proof  that  similar  packages  of  poisoned  meat  were 
found  on  the  person  of  the  accused,  afforded  important  evL 
dence  of  his  identity  with  the  person  who  killed  the  dog,  and 
that  he  was  present  on  the  premises  that  night  and  about  the 
time  the  fire  was  set.  These  were  facts  and  circumstances 
bearing  directly   on   the  crime   charged,  and   the    proof    of 

1  Reg.  V.  Harris,  4  F.  &  F.  343.  2  Reg.  v.  Gray,  4  F.  &  F.  1102. 

5 


66  THE  INTENTION,  AND  DECLARATIONS 

another  crime  was  onl}^  incidental  to  this  main  purpose.  If 
the  examination  of  any  case  of  crime  must  be  suspended,  lest 
the  evidence  might  show  the  accused  to  have  been  guilty  of 
other  offences,  while  at  the  same  time  it  is  relevant  and  neces- 
sary to  prove  the  crime  charged,  then  the  person  guilty  of  the 
greatest  number  of  crimes  may  often  hold  them  before  him  as 
a  shield  and  protection  against  the  full  disclosure  of  such 
facts  and  circumstances  as  may  convict  him  of  the  crime 
charged."  ^ 

Mr.  Justice  Erie  said  his  experience  had  taught  him  that  in 
cases  of  arson  indications  of  guilt  were  often  found  in  ex- 
tremely minute  circumstances,  which  were  not  the  less  cogent 
on  that  account ;  that  it  was  to  the  words,  whether  true  or 
false,  by  which  a  man  accounted  for  himself  at  the  critical 
time,  to  his  conduct  when  the  fire  was  in  progress,  to  his  man- 
ner of  offering  assistance,  and  other  such  particulars,  that 
attention  should  be  directed,  and  that  in  the  absence  of  broad 
facts,  such  minute  circumstances  often  afforded  satisfactory 
evidence.^ 

Where,  the  defendant  was  indicted  for  the  crime  of  lewdness, 
b}''  wilfully  exposing  his  person  in  a  public  place,  and  evidence 
of  acts  of  a  similar  character  committed  by  the  defendant  at 
the  same  place,  on  the  same  day,  and  also  on  the  preceding 
day,  in  the  presence  of  parties  other  than  the  prosecuting  wit- 
ness, was  admissible.  And  it  was  held  likewise  proper  to  show 
that,  in  connection  with  one  of  these  acts,  the  defendant  had 
made  an  indecent  proposal  to  a  young  lady.^ 

In  another  case  the  defendants  were  indicted  and  convicted 
for  stealing  one  mare,  the  property  of  N.  On  the  trial  the 
prosecution  gave  evidence  tending  to  show  that  the  animal 
described  was  stolen  from  N.'s  pasture  on  the  night  of  the  12th 
of  October ;  and  that  on  the  same  night  another  animal  was 
stolen  from  one  A.,  and  a  saddle  and  bridle  from  B.  On  the 
15th  the  defendants  were  seen  at  a  toll-gate  with  these  two 
animals  in  theu"  possession,  but  having  no  money  to  pay  toll, 
were  compelled  to  turn  back.  Two  da,ys  later  the  animals 
were  turned  into  a  pasture  near  the  toll-road,  where  they 
remained  until  the  night  of  the  30th,  when  they  were  taken 

1  state  V.  Halleck,  65  Wis.  147  ;  7  Grim.  L.  Mag.  643. 

2  Charge  to  the  Grand  Jury  :  Warwick  Spring  Ass.,  1859. 

3  State  V.  Stice,  88  la.  27. 


AND  ACTS  INDICATIVE  THEREOF.  Q^ 

out  ■without  the  knowledge  of  the  owner  of  the  pasture,  and 
without  the  pasturage  ha\dng  been  paid.  On  the  same  night 
that  the  animals  were  taken  from  the  pasture,  and  on  the 
direct  route  to  the  town  of  S.,  there  was  stolen  from  R.  a  hack, 
a  set  of  harness,  and  a  robe,  and  from  C.  a  pair  of  single  lines, 
a  buggy  cushion,  and  two  blankets.  On  the  evening  of  the 
following  day  the  defendants  were  arrested  at  S.,  when  they 
had  in  their  possession  both  of  the  stolen  horses  and  the  prop- 
erty stolen  from  A.,  B.,  E,.,  and  C.  Here  tlie  evidence  tending  to 
show  that  the  property  found  in  the  defendants'  possession  at 
the  time  of  their  arrest  was  stolen  property,  was  so  inter- 
mingled and  connected  with  the  evidence  tending  to  show  that 
defendants  committed  the  crime  charged,  as  to  form  one 
entire  transaction,  and  to  identify  the  actor  by  a.  connection 
which  legally  tended  to  show  that  he  who  committed  the  one 
must  have  committed  the  other.  To  exclude  the  evidence 
relating  to  the  larcenies  for  which  the  prisoners  were  not  on 
trial,  would  have  broken  the  chain,  formed  of  links  more  or 
less  perfect,  connecting  them  with  the  one  which  constituted 
the  subject-matter  of  the  trial,  for  it  was  impracticable  for  the 
prosecution  to  trace  the  animal  of  N.,  and  the  defendants'  con- 
nection therewith  from  the  time  it  was  stolen  till  their  arrest, 
without  disclosing  the  commission  of  the  other  crimes.  ^ 

Instances  of  killing  to  conceal  other  crimes  are  frequent,  and 
evidence  of  the  murder  of  one  person  may  be  given  in  evidence 
upon  a  trial  for  the  murder  of  another,  if  such  evidence  tend 
to  show  that  the  prisoner  might  have  had  a  motive  arising  out 
of  the  other  murder  for  coimnitting  that  with  which  he  is 
charged.2 

"Where  the  prisoner  was  indicted  for  the  murder  of  her  child 
by  arsenical  poisoning,  it  appeared  that  she  had  several  times 
complained  of  the  cost  of  the  child's  support,  and  that  she  had 
its  life  insured.  An  analytical  chemist  testified  that  he  had 
found  in  the  stomach  of  the  deceased  more  than  sufficient 
arsenic  to  produce  death.  The  principal  point  in  the  case  was 
the  admission  of  testimony  of  the  same  witness  to  the  effect 
that  he  had  examined  the  bodies  of  two  other  children  of  the 
deceased  and  another  person  who  had  lived  in  the  house — the 

*  State  V.  Baker,  23  Ore.  441.    See  opinion  of  Lord,  C.  J. 
2  Com.  V.  Ferrigan,  8  Wright,  386  ;  Rex  v.  Clewes,  4  C.  &  P.  221.     And 
see  Reg.  v,  Geering,  infra. 


QS  THE  INTENTION,  AND  DECLARATIONS 

bodies  having-  been  exhumed  for  the  purpose — and  that  he  had 
found  arsenic  in  each.     The  prisoner  was  found  guilty .^ 

This  case  was  followed  by  one  where  the  prisoner  was  in- 
dicted for  the  murder  of  her  child  by  suffocation.  It  was 
allowed  to  be  proved  that  several  other  children  of  the  prisoner 
had  died  at  early  ages,  Lush,  J.,  saying  that  the  value  of  the 
evidence  did  not  affect  its  admissibility.  But  a  physician  hav- 
ing testified  that  death  might  have  occurred  by  the  mother 
accidentally  overlying  the  child,  or  by  the  clothes  covering  it, 
an  acquittal  was  directed.^ 

Evidence  has  frequently  been  held  admissible  of  other  trans- 
actions where  previous  attempts  have  been  made  unsuccess- 
fully to  commit  the  same  crime.  On  an  indictment  for  mali- 
ciously burning  a  building,  evidence  was  admitted  tending  to 
prove  that  the  defendant  set  fire  to  the  same  building  a  few 
nights  before,  and  that  the  fire  was  tlien  discovered  and  ex- 
tinguished by  a  neighbor.^  And  on  the  question  of  intent,  the 
government  was  permitted  to  show  that  the  defendant,  a  few 
nights  before,  set  fire  to  a  shed  ten  feet  distant  from  the  build- 
ing burned,  and  connected  thercAvith  by  a  flight  of  steps.* 

The  prisoner  in  one  case  was  on  trial  for  an  assault  with 
intent  to  murder,  alleged  to  have  been  committed  in  March, 
1891.  In  the  summer  of  1891  he  had  been  convicted  of  a 
similar  assault  upon  the  same  party  which  had  occurred  in 
December,  1890.  To  show  motive  and  ill-will,  the  prosecution 
was  permitted  to  prove  the  prior  assault  and  conviction.^ 

On  the  trial  of  one  for  procuring  a  miscarriage  by  the  use  of 
a  quill,  evidence  was  admitted  to  prove  other  similar  acts  by 
the  prisoner  by  the  use  of  a  similar  instrument  both  before  and 
after  the  act  in  question  to  show  intent.^ 

On  an  indictment  for  burning  property  with  intent  to  defraud 
the  insurance  company,  evidence  was  admitted  of  a  previous 
conspiracy  to  burn  the  same  property.^ 

On  a  trial  for  murder,  evidence  that  two  or  three  weeks  prior 
to  the  killing  the  deceased  had  been  waylaid  and  shot  at,  and 

1  Reg.  V.  Cotton,  12  Cox  C.  C.  400. 

2  Reg.  V.  Roden,  13  Cox  C.  C.  630.  By  these  cases,  Reg.  v.  Winslow,  8 
(^ox  C.  C.  397,  was  virtually  overruled. 

3  Com.  V.  Bradford,  126  Mass.  42. 

*  In  Com.  V.  McCarthy,  119  Mass.  854.    And  see  Martin  v.  State,  28  Ala.  71. 
6  Crass  V.  State,  30  Tex.  App.  480.  e  Reg.  v.  Dale,  16  Cox  C.  C.  703. 

'  Meister  v.  People,  31  Mich.  99. 


AND  ACTS  INDICATIVE  THEREOF.  qq 

that  the  defenclcant  had  said  that  he  did  it,  was  held  admissible, 
as  strongly  tending  to  identify  the  guilty  party,  and  as  showing 
the  animus  of  the  accused  towards  the  deceased.^  And  in 
another  case  the  State  introduced  evidence  showing  that  de- 
fendant attempted  to  cut  the  deceased  with  a  knife,  the  night 
before  the  murder,  and  a  witness  was  allowed  to  testify  to 
having  seen  a  cut  in  deceased's  dress.^  And  on  a  trial  for 
assault  by  shooting,  to  show  malice,  it  was  permitted  to  be 
proved  that  just  previous  to  the  shooting  the  accused  had  made 
an  assault  upon  the  same  person  with  a  Ivnife,  it  being  part  of 
a  continuous  act.^ 

And  again  upon  a  charge  of  maliciously  shooting,  where  the 
question  was  whether  the  act  proceeded  from  an  accident  or 
design,  evidence  was  admitted  that  the  prisoner  had  intention- 
ally shot  at  the  same  person  about  a  quarter  of  an  hour  before.* 
On  a  trial  for  murder  by  administering  prussic  acid  in  porter, 
Mr.  Baron  Parke  admitted  evidence  that  the  deceased  had  been 
taken  ill  several  months  before,  after  partaking  of  porter  with 
the  prisoner,  and  said  that  although  this  was  no  direct  proof 
of  an  attempt  to  poison,  the  evidence  was  nevertheless  admis- 
sible, because  anything  tending  to  show  antipathy  in  the  party 
accused  against  the  deceased  was  admissible.^ 

On  an  indictment  for  murder,  an  indictment  against  the 
defendant  for  assault  with  intent  to  murder  the  same  person 
about  t^v^o  years  before  the  killing,  which  indictment  was  still 
pending,  was  admitted  to  show  motive.^  A  recent  case  was  an 
indictment  for  assault  with  intent  to  commit  sodomy.  The 
assault  was  committed  on  board  a  train  moving  from  Oregon 
into  Washington.  If  the  evidence  had  been  confined  to  what 
happened  in  the  county  in  which  the  venue  was  laid,  it  would 
have  been  difficult  to  make  out  the  case,  for  the  facts  in  evi- 
dence would  have  left  it  doubtful  what  the  appellant  was  trying 
to  do.  But  the  prosecution  was  allowed  to  show  the  particulars 
of  a  former  assault  made  on  the  same  person  while  the  train 
was  yet  in  Oregon,  where  the  intent  was  very  clear,  to  assist 
the  jury  to  come  to  a  conclusion  as  to  the  defendant's  real  in- 
tention in  making  the  second  assault.'^ 

1  Washington  v.  State,  8  Tex.  App.  377.        2  state  v.  Lewis,  80  Mo.  110. 
3  State  V.  Porter,  45  La.  Ann.     And  see  State  v.  Patza,  3  La.  Ann.  513. 
*  Rex  V.  Coke,  R.  &  R.  653.  &  Rex  v.  Tawell,  infra. 

«  Hart  V.  State,  15  Tex.  App.  203.      "  State  v.  Place  (Wash.),  32  Pac.  736. 


YO  THE  INTENTION,  AND  DECLARATIONS 

The  rule  is  recognized  as  well  established  that  in  cases  where 
guilty  knowledge  is  an  ingredient  of  the  offence  charged,  the 
same  may  be  proved,  as  other  facts  are  proved,  by  circumstan- 
tial evidence,  and  that  other  acts  of  a  like  character,  although 
involving  substantial  crimes,  may  be  given  in  evidence  to  prove 
the  scienter.  The  principal  limitation  of  the  rule  is,  that  the 
criminal  act  which  is  sought  to  be  given  in  evidence,  must  be 
necessarily  connected  with  that  which  is  the  subject  of  the 
prosecution,  either  from  some  connection  of  time  and  place, 
or  as  furnishing  a  clue  to  the  motive  on  the  part  of  the  accused.^ 

On  the  trial  of  an  indictment  for  the  theft  of  a  horse  where 
the  defendant,  Avhen  arrested,  had  been  found  in  possession  of 
articles  stolen  by  his  companion  a  few  days  before,  evidence  of 
this  fact  was  admitted,  as  well  as  of  the  circumstances  of  the 
previous  thefts,  as  manifesting  that  the  two  were  engaged 
jointly  in  a  series  of  thefts,  which  included  the  one  for  which 
the  defendant  was  on  trial,  and  as  tending  to  establish  guilty 
knowledge  and  participancy  in  the  theft  charged.^ 

So  on  a  trial  for  attempting  to  obtain  money  from  a  pawn- 
broker on  a  worthless  ring,  by  representing  it  to  be  a  diamond 
ring,  evidence  was  admitted  to  show  guilty  knowledge  that  a 
few  days  before  the  defendant  had  obtained  money  from  an- 
other pawnbroker  on  a  worthless  chain  which  he  had  repre- 
sented to  be  a  gold  chain.  Such  testimony  was  not  conclusive, 
but  it  tended  to  show  that  he  had  been,  pursuing  a  similar  course, 
and  raised  the  presumption  that  he  was  not  acting  under 
a  mistake,  and  that  he  was  not  the  dupe  of  any  one.^  And  on 
a  charge  of  sending  an  obscene  letter  through  the  mails,  it 
being  necessary  to  prove  guilty  knowledge,  another  letter  re- 
ceived by  the  same  person  and  the  address  upon  the  envelope 
thereof  were  held  admissible.* 

In  a  case  to  which  reference  has  been  heretofore  made,^  Lord 
Chief  Justice  Campbell  said  that  the  rule  which  had  "  prevailed 
in  the  case  of  indictment  for  uttering  forged  notes,  of  allowing 
evidence  to  be  given  of  the  uttering  of  other  forged  notes  to 
different  persons,  had  gone  great  lengths,  and  he  would  be  un- 

1  Coleman  v.  People,  58  N.  Y.  555. 

2  Hardin  v.  State,  8  Tex.  App.  653. 

3  Reg.  V.  Francis,  12  Cox  C.  C.  612.  And  see  Reg.  v.  Roebuck,  25  L.  J. 
M.  C.  51.  *  Thomas  v.  State,  103  Tnd.  d  10. 

6  Reg.  V.  Butler,  2  C.  «&  K.  221. 


AND  ACTS  INDICATIVE  THEREOF.  Yl 

willing  to  see  the  rule  applied  generally  in  the  administration  of 
the  criminal  law."  A  base  coin  or  counterfeit  bill  is  often  passed 
innocently.  It  is  important  therefore  to  show  a  guilty  knowl- 
edge of  their  character  on  the  part  of  the  person  uttering  them 
in  order  to  lay  the  foundation  of  a  just  inference  of  crime 
against  him.  His  knowledge  of  the  thing  uttered  is  shown 
by  his  familiarity  Avith  it,  as  shown  by  his  use  of  it,  or  similar 
instruments,  on  former  occasions.  Therefore  the  admissibility 
of  evidence,  in  a  trial  for  uttering  counterfeit  bills  or  base  coin, 
of  the  utterance  of  similar  bills  or  coin  to  other  persons  about 
the  same  time,  is  well  established  in  England  and  America.^ 
Upon  a  charge  of  uttering  forged  notes,  the  forged  notes, 
either  of  the  same  or  of  a  different  bank,  found  on  the  prisoner's 
person,  were  allowed  to  be  given  in  evidence  to  show  guilty 
knowledge ;  ^  and  upon  an  indictment  for  uttering  a  forged 
Bank  of  England  note,  evidence  was  admitted  that  other  notes 
of  the  same  fabrication  had  been  found  on  the  files  of  the  Bank, 
with  the  prisoner's  handwriting  on  the  back  of  them.^ 

On  the  question  of  the  defendant's  knowledge  that  the  bills 
in  issue  were  not  genuine,  his  possession  and  use  of  other 
similar  false  bills,  about  the  same  time,  whether  before  or  after- 
wards, in  a  continuous  series  of  transactions,  with  the  same 
persons,  under  the  same  contract,  was  competent  to  show  that 
his  use  of  the  former  was  not  innocent.*  Evidence  of  the  sub- 
sequent uttering  of  another  forged  note  has  been  held  inadmis- 
sible to  prove  guilty  knowledge,  unless  the  latter  uttering  is 
in  some  way  connected  with  the  uttering  which  is  the  subject 
of  indictment,  as  by  showing  that  all  of  the  notes  are  of  the 
same  manufacture.^  To  make  such  circumstance  evidence,  it 
has  been  said,  there  must  be  a  strong  connection  on  the  subject- 
matter.  And  on  a  trial  for  passing  counterfeit  coin,  it  may  not 
be  shown  that  the  prisoner  had  in  his  possession  an  engraved 
print  in  imitation  of  a  bank-note.^  "  ]^o  doubt,"  says  Roscoe, 
"  there  would  be  some  limits  both  as  to  time  and  circumstances 

1  Com.  V.  Stine,  4  Met.  43 ;  Com.  v.  Bigelow,  8  Met.  235. 

■^  Rex  V.  Sunderland,  1  Lewin,  102  ;  Rex  v.  Hodgson,  Id.  103 ;  Rex  v. 
Kirkwood,  Id.  103  ;  Rex  v,  Martin.  Id.  104  ;  Rex  v.  Hall ;  Rex  v.  Millward, 
R.  &  R.  245  ;  Reg.  v.  Green,  3  C.  &  K.  209. 

8  Rex  V.  Ball,  1  Campbell,  324  ;   R.  &  R.  132. 

*  Com.  V.  White,  145  Mass.  392  ;  Devere  v.  State,  5  Ohio  C.  C.  509. 

6  Rex  V.  Taverner,  6  C.  &  P.  413.    And  see  Reg.  v.  Smith,  Id. 

6  Stalker  v.  State,  9  Conn.  341. 


72  THE  INTENTION,  AND  DECLARATIONS 

beyond  which  evidence  of  uttering  forged  instruments  on  other 
occasions  would  not  be  permitted."  ^  And  it  has  been  held 
that  if  the  passing  of  the  other  note  be  at  a  remote  period,  it  is 
not  sufiicient.2 

The  possession  of  a  large  quantity  of  counterfeit  coin,  many 
of  each  sort  being  of  the  same  mould,  and  each  piece  of  it 
being  wrap])ed  in  a  separate  piece  of  paper,  and  the  Avhole 
distributed  in  different  pockets  of  the  dress,  was  held  to  be 
evidence  that  the  prisoner  knew  that  the  coin  Avas  counterfeit, 
and  intended  to  utter  it.^  And  it  has  been  held  that  where 
other  coins  of  the  same  denomination  as  those  on  which  the 
prosecution  is  based  are  found  in  the  prisoner's  possession,  they 
need  not  be  produced  in  court.^  The  principle  was  carried 
rather  far  on  an  indictment  for  uttering  a  counterfeit  crown- 
piece,  knowing  it  to  be  counterfeit,  where  evidence  was  ad- 
mitted, in  order  to  prove  the  guilty  knowledge,  that  the 
prisoner  on  a  day  subsequent  to  such  uttering  uttered  a  coun- 
terfeit shilling.^  "  The  uttering  of  a  piece  of  bad  silver,"  said  the 
court,  "  although  of  a  different  denomination  from  that  alleged 
in  the  indictment,  is  so  connected  with  the  offence  charged, 
that  the  evidence  of  it  was  receivable." 

The  guilty  knowledge,  which  is  an  essential  of  the  crime  of 
receiving  stolen  goods,  knowing  them  to  have  been  stolen,  is 
rarel}'"  the  subject  of  direct  proof  ;^  and  evidence  that  other 
goods,  known  to  have  been  stolen,  were  previously  received  by 
defendant  from  the  same  thief,  is  admissible  for  the  purpose 
of  showing  guilty  knowledge.''  The  circumstance  of  itself  may 
be  of  little  value,  for  it  does  not  necessarily  follow  that  the 
goods  mentioned  in  the  indictment  were  stolen  because  the 
others  were,  but  where  taken  in  connection  with  other  circum- 
stances, such  as  that  the  goods  mentioned  in  the  indictment 
were  sold  under  value,  received  at  night,  or  concealed,  it  might 
strongly  tend  to  fasten  guilt  upon  the  defendant. 

1  Cr.  Ev.  (8th  Am.  Ed.)  146. 

2  Dougherty's  Case,  3  City  Hall  Rec.  148. 

8  Reg.  V.  Jarvis,  25  L.  J.  M.  C.  30  ;  Rex  v.  Fuller,  R.  &  R.  308. 
*  McGregor  v.  State,  16  Ind.  9. 

5  Reg.  V.  Foster,  6  Cox  C.  C.  531  ;  24  L.  J.  M.  C.  134.  See  State  v.  Houston, 
1  Bail.  300  ;  Martin  v.  Com.,  5  Leigh,  707. 

6  Adams  v.  State,  52  Ala.  379. 

7  Shriedley  v.  State,  23  Ohio  St.  130  ;  State  v.  Ward,  49  Conn.  529  ;  Devoto 
V.  Com.,  3  Met.  (Ky.)  417. 


AND  ACTS  INDICATIVE  THEREOF.  73 

Where,  upon  an  indictment  for  receiving  goods  knowing  them 
to  have  been  stolen,  it  appeared  that  the  articles  had  been 
stolen,  and  had  come  into  the  possession  of  the  prisoner  at 
several  distinct  times,  the  judge,  after  compelling  the  prosecutor 
to  elect  upon  which  act  of  receiving  he  would  proceed,  told  the 
jury  that  they  might  take  into  their  consideration  the  circum- 
stances of  the  prisoner  having  the  various  articles  of  stolen 
property  in  his  possession,  and  pledging  or  otherwise  disposmg 
of  them  at  various  times,  as  an  ingredient  in  coming  to  a 
determination  whether,  ^vhen  he  received  the  articles  for  which 
the  prosecutor  elected  to  proceed,  he  knew  them  to  have  been 
stolen.^  In  like  manner,  upon  an  indictment  agamst  principal 
and  receiver,  where  goods  were  found  upon  the  receiver's 
premises,  which  had  been  taken  from  the  prosecutor's  premises, 
it  was  held  that  the  prosecutor  might  give  evidence  of  the  find- 
ing of  other  goods  at  the  house  of  the  principal,  notwithstand- 
ing there  Avas  no  evidence  to  connect  the  receiver  with  them, 
and  that  he  was  not  bound  to  elect.^  But  in  order  that  the 
possession  of  other  goods  may  be  proved  for  the  purpose  of 
showing  guilty  knowledge  as  allowed  by  St.  34  &  35  Vict. 
c.  112,  §  19,  the  possession  of  such  property  must  be  shown 
to  have  existed  at  the  time  when  the  prisoner  was  found  in 
possession  of  the  property  mentioned  in  the  indictment.^ 

1  Rex  V.  Dunn,  1  Moo.  C.  C.  150.    And  see  Reg.  v.  Bleasdale,  2  C.  &  K.  765. 

2  Reg.  V.  Hinley,  1  Cox  C.  C.  12. 

3  Reg.  V.  Drage,  14  Cox  C.  C.  85  ;  Reg.  v.  Carter,  15  Cox  C.  C.  448. 


CHAPTER   III. 

PREPARATION    AND    OPPORTUNITY  FOR    THE    COMMISSION  OF 

CRIME. 

Premeditated  crime  must  necessarily  be  preceded,  not  only 
by  impelling  motives,  but  by  appropriate  preparations.  Pos- 
session of  the  instruments  or  means  of  crime,  under  circum- 
stances of  suspicion,  as  of  poison,  coining  instruments,  combusti- 
ble matters,  picklocks,  housebreaking  instruments,  dark-lanterns, 
or  other  destructive  or  criminal  or  suspicious  weapons,  materials, 
or  instruments,  and  many  other  acts  of  apparent  preparation, 
are  important  facts  in  the  judicial  investigation  of  imputed 
crime.  The  possession  of  a  quantity  of  counterfeit  coin  upon 
the  person  or  the  premises  of  the  party  implicated  warrants 
the  inference  that  he  made  it.  And  this  inference  is  greatly 
strengthened  by  proof  that  instruments  or  tools  designed  for 
the  manufacture  of  such  coin  were  found  in  the  possession  of  the 
accused  person.  But  this  presumption  of  guilt  may  be  nega- 
tived by  evidence  showing  that  the  false  coin,  though  manu- 
factured by  him,  was  made  for  an  innocent  purpose,  or  a  pur- 
pose not  rendering  the  act  criminal.^ 

Where  a  man  had  in  his  possession  a  large  quantity  of  coun- 
terfeit coin  unaccounted  for,  and  there  was  no  evidence  that  he 
was  the  maker,  it  was  held  to  raise  a  presumption  of  an  inten- 
tion to  utter  it.^ 

Where  it  is  shown  that  wounds  on  the  person  of  deceased 
could  have  been  made  with  certain  instruments,  it  may  be 
shown  that  defendant  had  in  his  possession,  shortly  before  the 
homicide,  such  instruments.^  And  it  may  be  shoAVTi  that  a  few 
days  before  the  murder  the  defendant  purchased,  at  a  store  in 

1  United  States  v.  King,  5  McLean,  208. 

2  Rex  V.  Fuller,  R.  &  R.  308  ;  People  v.  Pomeroy,  2  Wheel.  Crim.  Rep.  159  ; 
People  V.  Haggerty,  Id.  195  ;  People  v.  Gardner,  Id.  23  ;  Galbranf  s  Case,  1 
CUty  Hall  Rec.  109.  ^  State  v.  Rainsbarger,  74  la.  196,  539. 


4 


PREPARATION  AND  OPPORTUNITY  FOR  CRIME.  75 

the  neighborhood,  shot  correspondmg  m  size  with  that  found 
in  the  body  of  the  deceased.^ 

Burglarious  tools  found  in  the  possession  of  defendant 
after  the  commission  of  a  burglary  may  be  offered  in  e\adence 
when  they  constitute  a  link  in  the  chain  of  circumstances 
which  tend  to  connect  the  defendant  with  the  commission  of 
the  particular  burglary  charged.^  But  before  such  tools  can  be 
received  in  evidence,  it  must  be  shown  that  the  burglary  charged 
was  in  fact  committed,  and  that  it  was  committed  with  the  aid 
of  tools  like  those  proposed  to  be  shown,  and  that  the  defend- 
ant was  in  the  vicinity  at  or  about  the  time  when  the  offence 
was  committed.  And  where  the  defendant  was  accused  of 
robbing  a  stage  on  the  morning  of  August  11,  and  it  was  shown 
that  on  the  afternoon  of  that  day  he  was  thirty  miles  from  the 
scene  of  the  robbery,  and  the  offence  was  not  committed  by 
the  aid  of  articles  like  those  proposed  to  be  showTi,  it  was  held 
improper  to  admit  burglarious  tools  found  in  defendant's  pos- 
session f ort3^-one  days  after  the  offence.^  But  in  a  case  in  Mis- 
souri, where  a  burglary  had  been  committed  "vvithout  the  aid  of 
burglarious  instruments,  and  immediately  thereafter  a  person 
was  arrested  going  from  the  scene  of  the  crime  under  circum- 
stances tending  to  connect  him  with  the  commission  of  the  act, 
and  he  had  in  his  possession  burglarious  implements,  it  was 
held,  that  such  possession  might  be  shown  as  a  circumstance 
tending  to  prove,  when  taken  in  connection  with  the  other 
suspicious  circumstances,  that  he  committed  the  offence.* 

AYhere  the  defendant  was  indicted  jointly  with  another  for 
burglary,  e\adence  that  burglarious  tools  were  made  for  the 
latter  was  admitted  to  connect  the  prisoner  with  the  crime.^ 
But  the  mere  fact  that  burglar's  tools  were  found  in  the  pos- 
session of  the  accused  when  he  was  arrested,  though  taken  in 
connection  with  the  fact  that  at  the  time  of  the  offence  he 
occupied  a  room  in  the  same  hotel  with  the  one  which  was 
entered,  and  not  fifteen  feet  away  from  it,  was  held  insufficient 
to  connect  accused  with  the  particular  offence  charged.  And 
the  suspicion  of  guilt  was  weakened  by  the  fact  that  an  imme- 
diate search  was  ntade  in  the  prisoner's  room,  and  none  of  the 

1  Howard  v.  State,  8  Tex.  App.  53.  2  People  v.  Winters,  29  Cal.  653. 

'  People  V.  Sansome,  84  Cal.  449. 
*  State  V.  Davis,  80  Mo.  53. 
6  People  V.  Clark,  2  Hun,  520. 


76  PREPARATION  AND  OPPORTUNITY 

money  stolen  was  found,  though  part  of  it,  a  twenty-dollar  note, 
could  have  been  easily  identified.^ 

Unless  the  party  possesses  the  opportunity  of  committing 
the  imputed  act,  neither  the  existence  of  motives  nor  the  mani- 
festation of  criminal  intention  by  threats  or  otherwise,  fol- 
lowed even  by  preparations  for  its  commission,  can  be  of  any 
weight. 

On  a  trial  for  the  murder  of  one  of  two  men  towards  w^hom 
the  defendant  had  expressed  strong  ill-feeling,  the  prosecution 
was  permitted  to  show  that  the  two  were  separated,  and  one 
of  them  lodged  in  jail  on  a  trumped-up  accusation  made  by  the 
defendant,  and  a  few  hours  before  the  other  was  murdered, 
Avhile  on  his  return  home  from  accompanying  the  former  to 
jail,  to  show  motive,  preparation,  and  opportunity .^  Where  a 
girl  had  been  outraged  and  murdered  on  her  way  home  from 
school,  and  the  defendant  was  indicted  for  the  crime,  evidence 
was  admitted  to  show  that  he  was,  on  the  day  of  the  murder, 
at  a  place  where  he  could  know  when  the  child  left  the  school, 
and  that  his  being  in  that  place  was  an  unusual  occurrence 
with  him.3 

Where  three  were  indicted  for  murder,  the  prosecution  was 
permitted  to  show  the  existence  of  a  secret  organization  whose 
object  was  crime  and  the  concealment  of  the  criminal,  etc.,  and 
that  the  defendants  were  members  of  such  organization,  to 
explain  the  relations  existing  between  the  conspirators,  the 
reason,  motive,  and  opportunity  for  their  combined  action,  and 
the  nature  of  the  tie  that  bound  them  together.* 

But  the  personal  character  for  probity,  and  the  civil  station 
of  the  party,  are  highly  material  in  connection  with  facts  such 
as  we  have  been  considering.  A  medical  man,  for  instance,  in 
the  ordinary  course  of  his  profession,  has  legitimate  occasion 
for  the  possession  of  poisons,  a  locksmith  for  the  use  of  pick- 
locks. In  many  cases  the  possession  of  such  materials  or  in- 
struments, and  other  acts  indicative  of  purpose  to  coimnit 
crime,  are  made  by  statute  iirima  facie  presumptions  of  guilt, 
and  in  some  even  substantive  offences.^ 

Facts  of  the  kind  referred  to  become  more  powerful  indica- 
tions of  guilty  purpose  if  false  reasons  are  assigned  to  account 

1  Johnson  v.  Com.,  29  Grat.  796.  «  Hubby  v.  State,  8  Tex.  App.  597. 

3  Campbell  v.  State,  23  Ala.  44.  *  Hester  v.  Com.,  85  Pa.  139. 

^  See  infra. 


FOR  THE  COMMISSION  OF  CRIME.  77 

for  them  ;  as  in  the  case  of  possessing  poison,  that  it  was  pro- 
duced to  destroy  vermin,  which  is  the  excuse  commonly  re- 
sorted to  in  such  cases. 

The  bare  possession  of  the  means  of  crime,  or  other  mere 
acts  of  preparation,  Avithout  more  conclusive  evidence,  are  not 
in  general  of  great  weight,^  because  the  intended  guilt  may  not 
have  been  consummated ;  and  until  that  takes  place  there  is 
the  locus  pcenitentke.  But  as  preparations  must  necessarily 
precede  the  commission  of  premeditated  crime,  some  traces  of 
them  may  generally  be  expected  to  be  discovered ;  and  if  there 
be  not  clear  and  decisive  proof  of  guilt,  the  absence  of  any  evi- 
dence of  such  preliminary  measures  is  a  cu'cumstance  strongly 
presumptive  of  innocence. 

'  3tate  V.  Rainpbarger,  supra. 


CHAPTER  IV. 

RECENT  POSSESSION  OF  THE   FRUITS  OF  CRIME. 


Section  I. 
General  Statement  of  the  Law  on  this  Subject. 

Since  the  desire  of  dishonest  gain  is  the  impelling  motive 
to  theft  and  robbery,  it  naturally  follows  that  the  possession  of 
the  fruits  of  crime  recently  after  it  has  been  committed  affords 
a  strong  and  reasonable  ground  for  the  presumption  that  the 
party  in  whose  possession  they  are  found  was  the  real  offender, 
unless  he  can  account  for  such  possession  in  some  way  consist- 
ently with  his  innocence.!  Larceny  is  a  crime  committed  in 
secret,  and  the  State  is,  in  most  cases,  necessarily  compelled  to 
resort  to  circumstantial  evidence  to  effect  a  conviction  of  the 
thief.  And  the  possession  of  the  property  shortly  after  the 
theft  is  the  circumstance  most  usually  relied  upon.  Such  pos- 
session is  not  positive  proof  and  does  not  relieve  the  case  of  its 
circumstantial  character.^ 

Before  the  presumption  arising  from  possession  will  attach 
to  the  accused,  the  corjpus  delicti  must  be  made  out.^  The  mere 
possession  of  goods  which  have  been  actually  lost  does  not 
furnish  any  conclusive  or  primafacie  proof  of  guilt  of  larceny ; 
of  itself  it  does  not  raise  the  suspicion  of  guilt.^  In  the  case 
last  cited  the  proof  did  not  show  that  the  property  found  in  the 
defendant's  possession  had  been  stolen  at  all,  and  the  witness 

1  Rex  V.  Burdett,  4  B.  &  Aid.  149  ;  Burnett  on  the  C.  L,  of  Scotland,  555  ; 
2  Mascardus  De  Prob.  ut  supra,  Concl.  Dcccxxxiv  ;  1  Hume's  Comm.  on  the 
C.  L.  of  Scotland,  111 ;  Best  on  Pres.  44  ;  Tucker  v.  State,  57  Ga.  503. 

2  Faulkner  v.  State,  15  Tex.  Crim.  App.  115. 

3  Carey  v.  State,  7  Humph.  499. 

*  Hunt  V.  Com.,  13  Grat.  757  ;  State  v.  Furlong,  19  Me.  225. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  ^9 

who  was  alleged  to  be  its  owner  could  not  identify  it  so  as  to 
distinguish  it  from  the  same  kind  of  property  sold  to  his  cus- 
tomer residing  in  the  same  vicinity  as  the  prisoner. 

The  force  of  this  presumption  has  been  recognized  from  the 
earliest  times  ;  and  it  is  founded  on  the  obvious  consideration, 
that  if  such  possession  have  been  lawfully  acquired,  the  party 
would  be  able,  at  least  shortly  after  its  acquisition,  to  give 
an  account  of  the  manner  in  which  it  was  obtained  ;  and 
his  unwillingness  or  inability  to  afford  such  explanation 
is  justly  regarded  as  amounting  to  strong  self-condemnatory 
evidence. 

It  is  not  so  much  the  mere  possession  of  the  stolen  goods  as 
it  is  the  nature  of  the  possession ;  whether  it  is  an  open  and  un- 
concealed one,  or  whether  the  goods  are  such  as  the  person 
found  in  possession  thereof  would  probably  be  possessed  of  in 
a  lawful  way.  If  property  of  great  value  should  be  found  in 
the  possession  of  one  known  to  be  poor,  so  as  to  render  it  highly 
improbable  that  he  had  purchased  it,  an  mference  of  guilt 
would  arise  much  stronger  than  if  such  property  were  found  in 
the  possession  of  a  man  of  wealth,  who  would  probably  pur- 
chase goods  of  such  value.i 

There  is  some  conflict  in  the  authorities  as  to  the  effect  to  be 
given  to  the  proof  of  possession  of  stolen  property. 

The  presumption  arising  from  possession  has  been  said  to  be 
one  of  law.2  This  proposition,  though  laid  down  by  a  court  of 
recognized  ability,  is  at  variance  with  the  great  weight  of 
authority.  For  the  presumption  is  generally  declared  to  be 
one  of  fact,  and  it  is  said  that  under  no  circumstances  does  it 
become  a  conclusive  presumption  of  law.^  It  is  not  a  presump- 
tion or  conclusion  of  law,  but  a  deduction  of  fact  to  be  dra^vn 
and  ascertained  by  the  jury  alone  from  the  circumstances  of 

1  Ingalls  V.  State,  48  Wis.  647.     And  see  Perry  v.  State,  41  Tex.  483. 

2  State  V.  Kelly,  73  Mo.  608.  The  attention  of  the  reader  is  directed  to 
State  V.  Kelly,  9  Mo.  App.  512,  where  Lewis,  P.  J.,  said  :  "  Tliere  are  suf- 
ficient defences  against  the  pi'esumption  arising  from  possession  whicli  do 
not  explain  the  possession ;  e.  g.,  alihi,  pure  character.  Therefore  it 
cannot  be  under  any  circumstances  whatever  a  conclusive  presimiption 
of  law." 

8  Stokes  V.  State,  58  Miss.  677.  This  case  disapproved  the  decision  in  Belote's 
Case,  36  Miss.  97,  where,  though  the  presumption  was  spoken  of  as  one  of 
fact,  an  instruction  was  approved  which  said  to  the  jury,  that  "if  you 
believe  the  possession  unexplained  j'ou  will  find  the  accused  guilty."  And 
see  Snowden  v.  State,  62  Miss.  100  ;  Smith  v.  State,  58  Ind.  341. 


80  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

the  case.i  "  It  is  a  presumption,"  said  Bailey,  J.,  "  established 
by  no  legal  rule,  ascertained  by  no  legal  test,  defined  by  no 
legal  terms,  measured  by  no  legal  standard,  bounded  by  no 
legal  limits.  It  has  none  of  the  characteristics  of  law.  Whether 
it  be  found  by  the  judge  or  the  jury,  the  judge  and  the  jury 
must  be  equally  unconscious  of  finding  in  it  any  semblance  of 
a  legal  principle,  however  much  good  sense  may  appear  in  the 
result  arrived  at."  ^  And  it  is  not  a  presumption  of  law  and 
fact  combined. 2 

Some  authorities  hold  that  possession  alone  is  not  sufficient 
in  any  case  to  warrant  a  conviction.  The  rule  in  California  is 
stated  as  being  that  possession,  together  with  proof  of  other 
circumstances  indicative  of  guilt,  would  make  a  prima  facie 
case  against  defendant.'* 

And  the  circumstances  indicative  of  guilt  which  must  be 
shown  in  order  to  render  the  naked  possession  of  the  thing 
available  toward  a  conviction,  must  be  such  as  are  naturally 
calculated  to  awaken  suspicion  against  the  party  charged  and 
to  corroborate  the  influence  of  guilty  possession.^ 

In  Texas  the  possession  of  tlie  stolen  property  recently  after 
the  theft,  united  with  the  failure  of  the  one  in  whose  possession 
it  is  found  to  satisfactorily  account  for  the  possession,  when 
called  upon  to  explain,  will,  though  unaccompanied  by  any 
other  evidence,  warrant  a  conviction.^    Recent  possession  alone 

1  Lockhart  v.  State,  29  Tex.  Crim.  App.  35  ;  Ayres  v.  State,  21  Tex.  Crim. 
App.  399  ;  Dillon  v.  People,  1  Hun,  670. 

-  State  V.  Hodge,  50  N.  H.  510.  The  learned  judge  in  this  case  said  fur- 
ther :  "The  law  is  burdened  and  obscured  by  a  great  mass  of  common 
opinion,  general  understanding,  practice,  precedent,  and  authority  (includ- 
ing the  presumption  from  the  possession  of  stolen  property)  that  has  passed 
for  law,  but  is  in  truth  not  law,  but  fact,  coming  down  to  us  largel)^  by 
descent  from  the  ancient  custom  of  the  judge  giving  the  jury  his  opinion 
of  the  evidence."    See  also  State  v.  Hale,  13  Ore.  352. 

3  Graves  v.  State,  12  Wis.  591.  Practically,  said  the  court,  in  State  v.  Rich- 
art,  57  la.  245,  it  is  immaterial  what  the  presumption  is  called,  unless,  b}' 
reason  thei-eof,  the  jury  are  directed  to  convict.  Until  this  is  done  it 
remains  a  presumption  of  fact.     See  also  State  v.  Kelly,  57  la.  644. 

4  People  V.  Antonio,  27  Cal.  404.  See  also  People  v.  Ah  Ki,  20  Cal.  177  ; 
People  V.  Gassaway,  23  Cal.  51 ;  Durant  v.  People,  13  Mich.  351. 

5  People  V.  Chambers,  18  Cal.  382. 

6  Lehman  v.  State,  18  Tex.  Crim.  App.  174  ;  McNair  v.  State,  14  Id.  83  ; 
Roberts  v.  State,  17  Id.  82,  overruling  on  this  point  Hannah  v.  State,  1  Tex. 
Crim.  App.  582.  And  see  State  v.  Kelly,  57  la.  644  ;  State  v.  Creson,  38  Mo. 
372  ;  State  v.  Ingram,  16  Kan.  14  ;  Knickerbocker  v.  People,  43  N.  Y.  177 ; 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  81 

is  a  circumstance  to  be  considered  by  the  jury/  but,  without  an 
opportunity  to  explain,  it  does  not  warrant  a  conviction.^ 

"Where  one  accused  of  the  theft  of  cattle  was  convicted  on 
evidence  that  the  hide  of  a  cow  was  found  in  his  house  at  the 
time  of  his  arrest,  and  he  was  not  informed  of  the  cause  of  the 
arrest,  nor  his  attention  called  to  the  fact  that  the  hide  was 
found  in  the  house,  and  that  he  was  suspected  of  the  theft,  the 
conviction  was  reversed.^  Again,  on  the  trial  of  an  indictment 
for  theft,  the  judge  charged  that  the  "  possession  of  property 
recently  stolen  is  evidence  against  the  accused  which,  like  all 
other  evidence,  is  to  be  taken  and  considered  by  the  jury  in 
connection  with  other  testimony  in  the  case."  This,  on  review 
by  the  Cornet  of  Appeals,  was  held  to  be  erroneous,  and  the  true 
rule  was  said  to  be  that  "  the  possession  of  property  recently 
stolen  is  merely  a  fact  or  circumstance  *  to  be  considered  by  the 
jury,  in  connection  with  all  the  other  evidence  submitted  to 
them,  in  determining  the  guilt  of  the  possessor."  It  is  not 
always  that  the  possession  of  recently  stolen  property  is  exi- 
dence  against  the  possessor.  It  is  always  admissible  evidence 
in  a  trial  for  theft,  but  it  is  for  the  jury,  and  not  the  judge,  to 
determine  whether  it  is  against  the  defendant ;  ^  or  whether  it 
is  strong,  or  only  slight,  evidence  tending  to  show  guilt. 

And  in  "West  Virginia  possession  of  stolen  goods  is  not 
prima  facie  evidence  that  the  possessor  is  the  thief,  even  when 
unaccompanied  by  a  reasonable  explanation  of  how  the  posses- 
sion was  acquired ;  but  stiU  evidence  of  such  possession  is  proper 
to  be  considered  by  the  jury  in  connection  with  the  other  evi- 
dence." 

In  Illinois  it  is  settled  that  recent  possession  is  jprima  facie 

State  V.  Jenkins,  2  Tyler  (Vt.),  377  ;  State  v.  Arnold,  12  la.  479  ;  State  v. 
Daley,  37  La.  Ann.  576  ;  People  v.  Wilson,  30  Mich.  486. 

1  Montgomery  v.  State,  13  Tex.  Crim.  App.  669  ;  Truax  v.  State,  12  Tex. 
Crim.  App.  230. 

2  Moreno  v.  State,  24  Tex.  Crim.  App.  401.  And  see  People  v.  Elster,  5 
Crim.  L.  Mag.  687  ;  State  v.  En,  10  Mo.  277. 

3  Moreno  v.  State,  supra. 

*  It  is  at  most  but  a  circumstance  weaker  or  stronger  as  the  case  may  be. 
Schultz  V.  State,  20  Tex.  Crim.  App.  308 ;  Sullivan  v.  State,  18  Tex.  Crim. 
App.  623. 

5  Bryant  v.  State,  16  Tex.  Crim.  App.  144.  See  also  Cooper  v.  State,  29 
Tex.  Crim.  App.  8. 

6  People  V.  Witherington,  59  Cal.  598  ;  People  v.  Ah  Sing,  59  Cal.  400. 

7  State  %\  Reese,  27  W.  Va.  375. 

6 


82  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

evidence  of  guilt,  and  is  sufficient  to  Avarrant  a  conviction  unless 
the  attending  circumstances  or  other  evidence  so  far  overcome 
the  presumption  as  to  create  a  reasonable  doubt  of  guilt.^ 

In  Missouri  recent  possession  is  prima  facie  evidence  of 
guilt,2  and  in  the  absence  of  rebutting  evidence  is  conclusive.^ 
But  it  is  worthy  of  note  that  Judge  Henry  has,  in  several  cases, 
delivered  earnest  opinions  in  which  he  has  refused  to  give  his 
adhesion  to  the  rule  declared  by  the  majority  of  the  court, 
and  in  which  he  has  insisted  that  the  weight  of  authority  sup- 
ports the  proposition,  that  the  recent  possession  is  nothing  but 
circumstantial  evidence  of  guilt,*  and  affords  no  presumption 
which  authorizes  the  court  to  declare  to  the  jury  that  the  de- 
fendant stole  the  property.^ 

The  better  rule  probably  is  that  if  the  possession  be  recent 
after  the  theft,  such  evidence  is  sufficient  to  make  out  d^ prima 
facie  case  proper  to  be  left  to  the  jury.^  Where  the  defendant 
was  accused  of  the  larceny  of  certain  sheep,  the  court  said  it 
was  too  strong  to  instruct  the  jury  that  they  must  convict  the 
accused,  unless  he  had  proved,  to  their  reasonable  satisfaction, 
that  he  came  by  the  sheep  otherwise  than  by  stealing. 

It  is  always  a  question  for  the  jury,  applying  to  the  solution 
of  the  problem  the  common  experiences  and  observations  of 
life,  whether  they  are  satisfied,  from  all  attending  circum- 
stances and  other  facts  in  evidence,  that  the  possession  was 
honest  or  felonious.'^ 

Possession  of  property  recently  stolen  without  reasonable 
explanation   of  that  possession  is  evidence  of  guilt  to  go  to 

1  Smith  V.  People,  103  111.  82 ;  Sahlinger  v.  People,  103  111.  241  ;  Comfort 
V.  People,  54  111.  404.  Cronkwriglit  v.  People,  35  111.  204,  seems  to  hold  that 
possession  of  itself  is  not  prima  facie  evidence,  but  in  Comfort  v.  People, 
supra,  that  ruling  is  disavowed. 

2  State  V.  Beatty,  90  Mo.  142  ;  State  v.  Butterfield,  75  Mo.  297 ;  State  v. 
Bulla,  89  Mo.  595  ;  State  v.  Brown,  75  Mo.  317. 

3  State  V.  Jennings,  81  Mo.  185.  In  State  v.  Kennedy,  88  Mo.  341,  an  in- 
struction that  one  found  in  the  possession  of  stolen  goods  was  presumed  to 
be  the  thief,  and  if  he  failed  to  account  for  his  possession  in  a  manner  con- 
sistent with  his  innocence  the  presumption  became  conclusive,  was  held  to 
be  proper  in  the  absence  of  evidence  of  good  character.  And  see  State  v. 
Gray,  37  Mo.  463.  See  also  Hughes  v.  State,  8  Humph.  75  ;  State  v.  Brown, 
supra ;  State  v.  Daly,  37  La.  Ann.  576. 

^  People  V.  Abbott  (Cal.),  36  Pac.  129. 
^  State  V.  Jennings,  and  State  v.  Kennedy,  supra. 

e  State  V.  Merrick,  19  Me.  398.  And  see  Porterfield  v.  Com.  (Va.),  22  S. 
E.  352,  7  Foster  v.  State,  52  Miss.  695. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  83 

the  jury  for  consideration.  In  this  sense  it  is  ])rima  facie 
evidence,  but  not  in  the  sense  that  it  is  such  evidence  as  must 
compel  the  jury  to  a  conviction  unless  it  be  rebutted.^ 

And  the  defendant  cannot  be  required  to  overcome  the 
presumption  by  a  preponderance  of  evidence.  All  that 
he  can  be  required  to  do  is  to  introduce  evidence  which  creates 
a  reasonable  doubt  whether  he  came  honestly  into  the  posses- 
sion of  the  property .2  Therefore,  where  a  man  was  indicted  for 
stealing-  a  piece  of  wood,  which  was  found  in  his  shop  five  days 
after  the  theft,  and  he  stated  that  he  had  bought  it  from  a  person 
whom  he  named,  who  lived  about  two  miles  off,  it  was  held  that 
the  prosecutor  was  bound  to  show  that  the  account  was  false.^ 
And  where  the  defendant  was  found  in  possession  of  a  stolen 
horse  which  he  told  the  officer  he  "  bought  from  a  man  near 
Austin,"  and  on  his  trial  proved  the  truth  of  his  statement  by 
a  witness  who  detailed  the  circumstances  of  the  purchase,  it 
was  held  that  the  State  must  show  the  explanation  false,  or 
the  prisoner  must  be  acquitted.* 

In  another  case  the  accused,  in  confirmation  of  his  state- 
ment that  he  had  purchased  the  property  from  another  party, 
showed  a  bill  of  sale  from  such  party .^  It  must  be  shown  that 
the  defendant  purchased  the  identical  articles.^  Whether  the 
purchase  was  in  good  or  bad  faith  is  immaterial,  he  being 
charged  with  the  theft  only.''  "  It  is  a  common  mode  of 
defence,"  says  a  learned  writer,  "  to  state  a  delivery  by  a 
person  unknown,  and  of  whom  no  evidence  is  given.  Little  or 
no  reliance  can  consec^uently  be  had  upon  it.  Yet  cases  of 
that  sort  have  been  known  to  happen  where  persons  really 
innocent  have  suffered  under  such  a  presumption ;  and  there- 
fore where  this  excuse  is  urged,  it  is  a  matter  of  no  little 
weight  to  consider  how  far  the  conduct  of  the  prisoner  has 
tallied  with  his  defence  from  the  time  when  the  goods  might 
be  presumed  to  have  first  come  into  his  possession."  ^ 

In  such  cases  it  is  a  question  for  the  jury,  whether  there  is 
a  sufficiently  reasonable  account  given  by  the  prisoner  to  en- 

1  Boykin  v.  State,  34  Ark.  443.     And  see  Ingalls  v.  State,  48  Wis.  647. 

2  State  V.  Richart,  57  la.  245.  s  Reg.  v.  Smith,  2  C.  &  K.  217. 
*  Hyatt  V.  State  (Tex.  Crim.  App.),  25  S.  AV.  291. 

6  Roberts  v.  State,  17  Tex.  Crim.  App.  82. 

6  Way  V.  State,  35  Ind.  409. 

''  Faulkner  v.  State,  15  Tex.  Crim.  App.  115. 

«  2  East  P.  C,  665.     And  see  State  v.  Jenkins,  2  Tyl.  379. 


84  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

able  the  prosecutor  to  find  the  party  named.^  But  these 
refinements  are  not  strictly  followed  in  practice,  and  are  indeed 
not  alwa3^s  easily  capable  of  application.  Thus,  where  a 
prisoner  was  convicted  of  stealing  some  articles  of  dress,  and 
the  evidence  was  that  he  was  in  possession  of  the  stolen 
property  recently  after  it  had  been  stolen,  that  he  sold  it 
openly  in  a  public-house,  and  on  his  arrest  stated  to  the  con- 
stable that  C.  and  D.  brought  the  things  to  his  house,  and 
that  W.,  who  was  at  his  house,  would  say  that  it  was  true ; 
and  C,  D.,  and  W.  were  kno^vn  to  the  constable,  and  might 
have  been  produced  as  witnesses,  but  were  not  called,  and 
inquiries  were  made  of  W,,  but  the  result  of  the  inquiry  was 
not  given  in  evidence ;  it  was  held  that  the  conviction  was 
good,  and  that  it  was  not  incumbent  on  the  prosecutor  to  call 
the  persons  to  whom  the  prisoner  had  referred  to  disprove  his 
statement.^ 

Any  explanation  given  by  the  accused  of  his  possession,  at 
the  time  he  is  found  with  the  stolen  property,  is  admissible, 
when  his  possession  is  relied  upon  as  a  criminative  fact.^ 

The  explanation  should  be  given  such  weight  as  its  inherent 
probability,  coupled  with  the  failure  of  the  State  to  disprove 
it,  where  the  means  of  doing  so  lie  peculiarly  within  its  power, 
may,  in  the  judgment  of  the  jury,  entitle  it  to.^  In  Texas  it  is 
declared  that  the  possession  of  an  animal  without  a  bill  of 
sale  shall  be  illegal.^  But  it  cannot  be  inferred  that  the  party 
in  possession  of  an  animal  without  a  bill  of  sale  is  a  thief. 
Failure  to  receive  a  bill  of  sale  of  property  is  not  as  strong- 
evidence  of  guilt  as  failure  to  explain,  when  called  upon,  a 
possession  of  stolen  property.  Where  the  defendant  offers  as 
explanatory  of  his  possession  of  property  recently  stolen,  a  bill 
of  sale,  the  rule  is  stated  to  be,  that  "  if  the  evidence  tends  to 
show  an  acting  together,  conspiracy,  or  complicity  in  the 
taking,  between  the  vendor  in  the  bill  of  sale  and  the  defend- 
ant, the  court  may  submit  the  honajides  of  the  bill  of  sale  that 
the  jury  may  ascertain  and  find  whether  or  not  it  was  a  sham 
or  device  conceived  to  cover  up  and  avoid  the  crime  of  theft."  ^ 

1  Reg.  V.  Hughes,  Cox  C.  C.  176. 

2  Reg.  V.  Wilson,  26  L.  J.  M.  C.  7  ;  Cox  C.  C.  310. 

3  Goeus  V.  State  (Tex.  Crim.  App.),  31  S.  W.  656. 

4  Payne  v.  State,  57  Miss.  348.  ^  Tex.  Rev.  St.  Art.  4563. 

6  Clark's  Crim.  Law  of  Texas,  263  and  note  ;  Prator  v.  State,  15  Tex. 
Crim.  App.  363  ;  Roberts  v.  State,  17  Id.  82. 


I 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  85 

The  possession  which  is  shown  to  have  had  an  inception  sub- 
sequent to  the  offence  does  not  raise  the  presumption.  In  one 
case  the  goods  had  been  transported  by  common  carrier  from 
the  town  where  the  burglary  was  committed  to  another  town, 
where  they  were  called  for  and  taken  away  by  the  defendant, 
who  gave  a  false  name.  The  court  said  this  explained  his  pos- 
session so  far  as  to  prevent  the  application  in  its  full  force  of 
the  rule  relating  to  the  recent  unexplained  possession  of  stolen 
property,  though  it  might  be  a  very  suspicious  circumstance.^ 

A  person  charged  with  larceny  may  explain  his  possession 
by  showing  what  was  said  to  him  at  the  time  he  acquired  pos- 
session.2  The  defendant  and  another  were  caught  riding  stolen 
horses.  The  defendant  made  no  effort  to  escape,  but  his  com- 
panion got  away.  The  defendant  then  said  that  the  horse 
belonged  to  his  companion,  who  overtook  him  on  the  road 
and  offered  him  the  horse  to  ride  to  the  town  to  which  they 
were  both  going.^  In  another  case  a  conviction  was  reversed 
where  the  accused  had  been  arrested,  w^hile  driving  a  drove  of 
cattle,  for  the  theft  of  a  steer  which  was  in  the  drove.  He  had 
at  once  explained  his  possession  by  giving  the  names  of  the 
parties  claiming  to  own  the  cattle  and  by  whom  he  had  been 
hired,  and  there  was  no  evidence  to  overcome  his  explanation.* 

If  the  State  relies  upon  the  fact  that  the  defendant  was  in 
possession  of  the  stolen  property  at  different  times,  defendant 
has  the  right  to  introduce  his  explanations  made  at  each  time. 
There  is  no  rule  of  law  which  confines  a  party  to  one  explana- 
tion.^ 

The  explanation  itself  may  raise  a  suspicion  of  guilt.  And 
if  the  account  given  be  unreasonable  or  improbable  on  the  face 
of  it,  or  if  the  party  have  given  different  accounts  of  the  same 
transaction,  then  he  will  not  be  relieved  from  the  pressure  of 
the  general  rule  of  presumption.^  In  one  case  the  prisoner  was 
corroborated  as  to  his  statement  that  he  had  purchased  the 

1  Heed  v.  State,  25  Wis.  421.  And  see  State  v.  Humason  (Wash.),  32 
Pac.  111.  2  state  v.  Jordan,  69  la.  506. 

3  Guajardo  v.  State,  24  Tex.  Crim.  App.  603. 

*  Perry  v.  State,  supra. 

6  Castellon  v.  State,  15  Tex.  App.  551.  See  this  case  for  facts  illustrating 
the  text. 

6  State  V.  En,  10  Nev.  277  ;  Reg.  v.  Crowhurst.  1  C.  &  K.  370 ;  Reg.  v. 
Harmer,  8  Cox  C.  C.  487  ;  Reg.  v.  Debley,  2  C.  &  K.  818  ;  People  v.  Elster, 
5  Crim.  L.  Mag.  687  ;  Roscoe,  Cr.  Ev.  21. 


86  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

property ;  but  the  detailed  circumstances  of  the  alleged  pur- 
chase strengthened  the  suspicion  of  gTiilt.i  Where  property 
stolen  was  in  the  possession  of  the  accused  the  next  day  after 
the  theft,  and  was  offered  for  sale  by  him,  he  stating  that  he 
had  bought  it  at  a  public  auction,  and  persons  living  in  the 
vicinity  where  he  said  the  auction  had  been  held  testified  that 
there  had  been  no  auction  there,  a  verdict  of  guilty  is  warranted.^ 
On  the  officers  going  to  the  house  of  a  prisoner  to  search 
for  the  stolen  goods,  she  denied  having  them  ;  but  when  they 
were  found  hidden,  she  said  she  had  brought  them  with  her 
from  England.  The  goods  having  been  satisfactorily  identified 
by  the  owner,  the  prisoner  said  that  she  was  so  infirm  as  not  to 
be  able  to  leave  her  house,  but  this  contention  was  not  sustained, 
and  slie,  having  offered  no  evidence  of  good  character,  was 
found  guilty  of  larceny  .^  In  a  recent  case  the  prisoner  was 
accused  of  the  larceny  of  a  gold  watch.  It  was  shown  that  he 
had  sold  the  watch,  which  was  a  valuable  one,  for  a  mere  trifle  ; 
that  he  had  falsely  stated  he  had  bought  it  as  a  wedding  pres- 
ent for  his  wife ;  and  that  he  had  denied  being  at  the  place 
from  which  the  watch  had  been  taken,  though  it  was  satisfac- 
torily shown  that  he  had  been  there  on  the  very  morning.  An 
instruction  as  to  the  presumption  arising  from  recent  possession 
was  held  proper,  and  judgment  of  conviction  was  affirmed.* 
And  where  the  accused  had  disposed  of  the  property  at  a  price 
below  its  value,  and  had  made  inconsistent  statements  at  differ- 
ent times  in  relation  to  the  possession,  the  jury  was  charged 
that  the  circumstance  was  strong  and  conclusive  against  the 
prisoner.^  But  it  is  quite  conceivable  that  a  man  found  in  the 
possession  of  stolen  property  might  give  false  and  contradictory 
accounts  of  the  possession,  and  yet  be  innocent  of  the  theft. 
And  so,  where  this  was  the  only  incriminating  evidence,  it  was 
held  insufficient  to  support  a  conviction.^ 

1  State  V.  Schaffer,  70  la.  371.  2  Towle  v.  State,  47  Wis.  545. 

3  People  V.  Mary  Smith,  1  Wheel.  Cr.  C.  131. 
*  State  V.  Donovan  (Mo.),  26  S.  W.  340. 

5  Armsteads'  Case,  1  City  Hall  Rec.  174.  And  see  Eubanks  v.  State,  83 
Ga.  63  ;  State  v.  Rodman,  63  la.  456 ;  Conner  v.  State,  6  Tex.  Crim.  App. 
455. 

6  Norwood  V.  State,  20  Tex.  Crim.  App.  306.  The  defendant  in  this  case 
was  charged  with  the  theft  of  a  horse  belonging  to  one  Little.  The  de- 
fendant had  vmdoubtedly  had  recent  possession  of  the  horse ;  and  when 
called  upon  to  explain  he  had  given  several  contradictory  accounts,  and 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  37 

And.  the  fact  that  a  party  may  not  be  able  to  show  how  and 
when  he  acquired  possession  of  the  property  is  by  no  means 
conclusive  of  guilt.  He  is  not  to  be  deprived  of  any  other 
element  of  defence.^  The  jiresumption,  though  the  possession 
be  unexplained,  is  fully  rebutted  by  satisfactory  proof  of  an  alihi. 
And  where  witnesses  testified  that  the  defendant  was  seventy- 
five  miles  distant  from  the  place  of  a  burglary  at  the  time  of 
its  commission,  the  instruction  concerning  the  presumption 
arising  from  the  possession  of  the  goods  should  have  included  a 
statement  of  the  effect  of  such  proof .^  But  the  defendant  cannot 
rebut  the  presumption  by  introducing  witnesses  to  testify  that 
they  heard  some  one  else  say  that  he  committed  the  offence. 
To  allow  such  hearsay  to  rebut  and  overcome  so  strong  a  pre- 
sumption would  be  equivalent  to  holding  that  the  jury  ought 
to  acquit  in  any  case  where  the  prisoner  could  engage  some 
one  else  to  say  that  he  committed  the  crime  for  which  the 
prisoner  was  indicted,  and  then  offer  witnesses  to  prove  that 
they  had  heard  it  said.^ 

Good  character  has  a  very  important  bearing  in  rebutting 
the  presumption  of  guilt  consequent  on  possession.*  And,  in 
some  cases,  may  be  sufficient  to  entirely  overcome  the  presump- 
tion.°  If  a  purse  of  money  be  stolen  in  a  crowd,  and  soon  after 
the  theft  the  same  be  found  in  the  pocket  of  a  man  of  known 
reputable  character,  the  pocket  being  such  that  the  purse  could 
have  been  put  there  without  his  knowledge,  the  circumstance 
would  hardly  raise  a  suspicion  sufficient  to  lean  a  charge  of 
theft  upon.^ 

Thus,  in  a  case  where  the  defendant  was  accused  of  larceny, 
and  the  goods  were  found  upon  her,  and  her  explanation  was 

had  denied  all  knowledge  of  the  person  to  whom  he  had  sold  the  horse.  It 
was  also  shown  that  he  went  under  an  assumed  name.  A  witness  was 
introduced  by  the  State  who  testified  that  he  had  witnessed  a  horse-trade 
made  by  the  defendant  with  a  Mexican,  and  that  the  horse  in  controversy 
was  the  identical  horse  which  the  defendant  had  got  in  the  trade. 

1  State  V.  Bonin,  34  Mo.  537 ;  State  v.  Jordan,  69  la.  506. 

2  State  V.  Edwards  (Mo.),  19  S.  W.  91.  To  the  same  effect,  see  State  v. 
North,  95  Mo.  616 ;  State  v.  Bonin,  supra  ;  State  v.  Snell,  46  Wis.  524. 

3  Daniel  v.  State,  65  Ga.  199. 

*  State  V.  Castor,  93  Mo.  242  ;  State  v.  Kelly,  73  Mo.  608  ;  State  v.  Crank, 
75  Mo.  406 :  State  v.  Gray,  37  Mo.  463  ;  Hughes  v.  State,  8  Humph.  75 ; 
People  V.  Preston,  1  Wheel.  Cr.  Cas.  41. 

5  State  V.  Kelly,  57  la.  644  ;  People  v.  Hurley,  60  Cal.  78. 

6  Ingalls  V.  State,  48  Wis.  647. 


88  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

not  wholly  satisfactory,  there  was  evidence  of  previous  good 
character.  The  circumstances  being  doubtful,  an  acquittal  was 
directed.! 


Section  II. 

The  Element  of  Time. 

It  is  manifest  that  the  force  of  this  rule  of  presumption  de- 
pends upon  the  recency  of  the  possession  as  related  to  the 
crime.*  The  possession  of  stolen  property  does  not  raise  a 
presumption  against  the  defendant  unless  so  recent  as  to  ex- 
clude the  opportunity  of  others  to  steal  the  property .^  The 
lapse  of  eighteen  months  after  the  larceny  has  been  held 
sufficient  to  rebut  the  presumption  arising  from  possession  of 
goods.^  What  is  recent  possession  depends  upon  the  nature, 
value,  and  portability  of  the  property.^  If  the  time  be  long 
and  the  property  of  such  a  character  as  to  be  easily  handled, 
and  readily  transmissible,  the  presumption  is  very  slight.^  The 
possession  of  a  metallic  or  paper  piece  of  money,  five  days  after 
it  was  stolen,  might  have  less  weight  as  evidence  than  the 
possession  of  Powers'  Greek  Slave  five  years  after  the  lar- 
ceny of  such  property.'^  The  term  "recent"  is  a  relative 
term,  and  a  time  which  might  be  considered  recent  under  one 
state  of  facts  would  not  be  so  under  another  and  different  state 
of  facts.  Thus  in  one  case  the  money  was  not  found  until 
more  than  three  months  after  it  had  been  stolen,  but  the  con- 
ditions existing  when  it  was  found  tended  to  show  that  it  had 
been  in  the  possession  of  the  accused  a  considerable  length  of 
time.  Moreover,  the  presumption  of  guilty  connection  with 
the  larceny  was  strengthened  by  the  facts  that  from  a  time 
soon  after  the  money  was  taken  the  accused  had  in  his  pos- 
session and  expended  unusually  large    sums  of  money,  and 

1  People  V.  Turrell,  1  Wheel.  Cr.  Rep.  34. 

2  Shepherd  r.  State,  44  Ark.  39;  White  v.  State,  72  Ala.  195;  State  v. 
WiUiams,  9  Ired.  140  ;  State  v.  Floyd,  15  Mo.  349  ;  State  v.  Wolff,  15  Mo. 
168 ;  Gablick  v.  People,  40  Mich.  292  ;  Pollard  v.  State  (Tex,  Crim.  App.), 
26  S.  W.  70. 

3  State  V.  White,  89  N.  C.  462  ;  Gregory  v.  Richards,  3  Jones'  L.  410 ; 
State  V.  WiUiams,  9  N.  C.  140.  *  Warren  v.  State,  1  la.  106. 

5  State  V.  Castor,  93  Mo.  242.  e  Snowden  v..  State,  62  Miss.  100. 

T  Bailey,  J.,  in  State  v.  Hodge,  50  N,  H.  510, 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  89 

there  was  no  explanation  of  the  sources  from  which  he  received 
them.i 

The  question  as  to  when  a  possession  is  recent  is  usually  one 
of  fact  for  the  jury.^  The  possession  of  a  horse,  for  example, 
two  months  after  theft,  is  a  circumstance  to  be  considered  by 
the  jury ;  but  does  not,  even  unexplained,  raise  a  conclusive 
presumption.3  Where  three  sheets  were  found  upon  the  pris- 
oner's bed,  in  his  house,  three  months  after  they  had  been 
stolen,  Mr.  Justice  Wightman  held  that  the  case  must  go  to 
the  jury,  on  the  ground  that  it  was  impossible  to  lay  down  any 
rule  as  to  the  precise  time,  which  was  too  great  to  call  upon  the 
prisoner  to  account  for  the  possession;*  and  where  seventy 
sheep  were  put  upon  a  common  on  the  18th  of  June,  but  not 
missed  until  November,  and  the  prisoner  was  proved  to  have 
had  possession  of  four  of  them  in  October,  and  of  nineteen 
more  on  the  23d  of  November,  the  judge  allowed  evidence  of 
the  possession  of  both  to  be  given.^  And  possession  in  one 
State  of  a  slave  stolen  in  another  State  jBive  months  before,  was 
held,  with  the  other  circumstances,  sufficient  to  justify  con- 
viction.^ In  other  cases  convictions  were  had  where  twenty 
days,'''  one  month,^  and  six  weeks,^  respectively,  had  intervened ; 
and  the  unexplained  possession  on  Sunday  morning  of  goods 
which  had  been  stolen  on  Friday  night  was  held  sufficient  to 
convict.i*^  Where  two  pieces  of  woollen  cloth  in  an  unfinished 
state,  consisting  of  about  twenty  yards  each,  were  found  in  the 
possession  of  the  prisoner  two  months  after  being  missed,  and 
still  in  the  same  state,  it  was  held  that  this  was  a  possession 
sufficiently  recent  to  call  upon  him  to  show  how  he  came  by 
the  property.ii  In  another  case,  Mr.  Justice  Bayley  directed 
an  acquittal,  because  the  only  evidence  against  the  prisoner 
was,  that  the  goods  were  found  in  his  possession  after  a  lapse 
of  sixteen  months  from  the  time  of  their  loss;!^  and  where  a 
shovel  was  found,  six  months  after  the  theft,  in  the  house  of 
the  prisoner,  who  was  not  then  at  home,  Mr.  Baron  Gurney 

1  Jenkins  v.  State,  63  Wis.  49.  2  White  v.  State,  73  Ala.  195. 

3  Curtis  V.  State,  6  Cold.  9. 

*  Rex  V.  Hewlett,  3  Russ.  on  Cr.  (Greaves'  Ed.)  728. 

6  Rex  V.  Dewhirst,  2  Stark.  614.  s  state  v.  Kinman,  7  Rich.  497. 

''  State  V.  Williams,  9  Ired.  140.  s  Mondragon  v.  State,  33  Tex.  480. 

9  State  V.  Johnson,  1  Winst.  238.  w  Brown  v.  State,  59  Ga,  456. 

"  Reg.  V.  Partridge,  7  C.  &  P.  551. 

^  Anon.,  7  Monthly  Law  Mag.  58  ;  2  C.  &  P.  459. 


90  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

held  that  on  this  evidence  alone  the  prisoner  ought  not  to  be 
called  upon  for  his  defence.^  Where  the  evidence  against  a 
prisoner,  charged  with  the  larceny  of  a  saw  and  mattock,  was 
that  the  stolen  articles  were  found  in  his  possession  three 
months  after  they  were  missed,  it  was  held  that  this  was  not 
such  a  recent  possession  Sisjyer  se  to  put  him  upon  showing 
how  he  came  by  them ;  ^  and  where  a  stolen  horse  was  found 
in  the  prisoner's  possession  six  months  after  it  Avas  lost,  Mr. 
Justice  Maule  held  that  this  was  no  case  to  go  to  the  jury.^ 
On  a  trial  for  the  theft  of  a  shirt  it  appeared  that  twelve  months 
had  elapsed  from  the  time  when  the  prisoner  had  access  to  the 
premises  till  the  shirt  was  found  upon  him.  There  being  no 
other  circumstances  to  prove  that  the  shirt  had  been  stolen, 
this  was  held  insufficient.^  In  one  case  two  years  was  held  too 
great  a  length  of  time  to  raise  the  presumption ;  ^  in  others, 
live  months;*^  in  another,  four  months;"  and  in  another,  five 
weeks.® 

But  the  possession  of  stolen  property,  whether  recent  or 
remote,  is  a  circumstance  to  be  considered  by  the  jury  in  con- 
nection with  the  other  evidence  in  the  case.^  The  remoteness 
of  the  time  when  the  accused  is  found  in  possession  of  the 
property  from  the  time  when  the  crime  is  alleged  to  have  been 
committed  goes,  not  to  the  competency  of  the  evidence,  but  to 
its  weight.^*^ 


Section  III. 

The  Nature  of  the  Possession. 

It  is  obviously  essential  to  the  just  application  of  this  rule  of 
presumption,  that  the  house  or  other  place  in  which  the  stolen 
property  is  found  should  be  in  the  exclusive  possession  of  the 
prisoner.ii     The  possession  must  be  personal  and  must  involve 

1  Rex  V.  Cruttenden,  Best  on  Pres.  306  ;  6  Jurist,  267. 

2  Rex  V.  Adams,  3  C.  &  P,  600.  3  Reg.  v.  Cooper,  2  C.  &  K.  318. 
4  Reg.  V.  Hall,  1  Cox  C.  C.  231.  ^  Beck  v.  State,  44  Tex.  430. 

«  Yates  V.  State,  37  Tex.  202 ;  Bragg  v.  State,  17  Tex.  Crim.  App.  219. 

■^  State  V.  Walker,  41  la.  217.  «  State  v.  Warford,  15  S.  W.  886. 

9  Moreno  v.  State,  24  Tex.  Crim.  App.  401  ;  Lehman  v.  State,  18  Tex. 
Crim.  App.  174  ;  State  v.  Rights,  83  N.  C.  675  ;  State  v.  Williams,  9  Ired. 
140.  ^'5  Lindsey  v.  People,  63  N.  Y.  243. 

11  State  V.  Taylor,  20  S.  W.  239  ;  State  v.  Castor,  93  Mo.  242. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  91 

a  distinct  and  conscious  assertion  of  possession  by  the  defend- 
ant.i  The  presumption  may  scarcely  arise  at  all  if  others  be- 
sides the  accused  have  had  equal  access  with  himself  to  the 
place  wliere  the  property  is  discovered.^  Where  it  is  found  in 
the  apartments  of  a  lodger,  for  instance,  the  presumption  may 
be  stronger  or  weaker,  according  as  the  evidence  does  or  does 
not  show  an  exclusive  possession.  Where  a  conviction  was 
had  principally  on  evidence  of  possession,  but  the  articles  were 
not  shown  to  have  been  in  the  possession  of  the  defendant,  but 
only  in  a  house  of  which  he  was  an  inmate,  his  own  domicil 
being  a  room  different  from  that  in  which  the  articles  were 
found,  a  new  trial  was  granted.^  That  the  stolen  property  is 
found  in  possession  of  one  for  whom  the  defendant  has  been 
working  will  not  raise  the  presumption  against  the  defendant.* 

The  rule  is  strikingly  illustrated  in  a  case  where  there  was 
nothing  to  connect  the  prisoner  with  the  goods  except  the  fact 
that  they  were  found  in  his  trunk.  The  trunk  was  in  the  mid- 
ship of  a  canal  boat  in  which  other  persons  resided,  and  to 
which  any  one  might  have  access,  and  was  brought  to  the  boat 
by  the  prisoner  about  nine  in  the  morning,  at  which  time  it 
was  locked.  It  was  not  shown  that  the  prisoner  opened  the 
trunk  or  that  he  thereafter  went  to  it  for  any  purpose.  He 
left  the  boat  about  noon.  The  officer  who  discovered  th6 
goods  first  saw  the  trunk  in  the  afternoon,  the  day  after  the 
prisoner  left  the  boat.  At  that  time  it  bore  unmistakable  evi- 
dence of  having  been  broken  open  by  violence.  Only  a  small 
portion  of  the  goods  stolen  were  in  the  trunk.  It  was  held 
that  the  law  would  not  presume  that  the  prisoner  broke  his 
own  trunk  open  until  it  was  shown  that  he  had  no  key  to  it ; 
and  that  the  fact  that  a  portion  of  the  goods  was  found  in  the 
prisoners  trunk  under  such  circumstances  was  little,  if  any, 
stronger  than  it  would  have  been  had  they  been  found  in 
some  other  part  of  the  boat.^ 

As  a  general  rule,  where  stolen  goods  are  found  in  the  house 
of  a  married  man,  they  must  be  considered  in  his  possession, 
and  not  in  the  possession  of  his  wife,  unless  there  be  evidence 

1  Pollard  V.  State  (Tex.  Crim.  App.),  26  S.  AV.  70  ;  People  v.  Hurley,  60 
Cal.  74 ;  Shepherd  v.  State,  44  Ark.  39  ;  Robinson  v.  State,  23  Tex.  Crim. 
App.  690  (see  facts)  ;  Moreno  v.  State,  24  Tex.  Crim.  App.  401  ;  Field  v. 
State,  Id.  422 ;  Williamson  v.  State,  17  S.  W.  722. 

2  Gablick  v.  People,  40  Mich.  292.  3  Carter  v.  State,  46  Ga.  637. 
*  State  V.  Wolff,  15  Mo.  168.        &  Davis  v.  People,  1  Park.  Cr.  R.  447. 


92  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

of  something  specially  to  implicate  her,  such  as  statements 
made  or  acts  done  by  her,  in  which  case  it  must  be  left  to  the 
jury  to  decide  in  wliose  possession  they  were.i  Therefore, 
where  a  wife  was  indicted  Avith  her  husband  for  receiving 
stolen  property,  and  it  appeared  that  she  had  destroyed  the 
property,  it  was  held  to  be  a  question  for  the  jury  whether  she 
had  so  dealt  with  it  to  aid  her  husband  in  turning  it  to  profit, 
or  merely  to  conceal  his  guilt,  or  screen  him  from  the  conse- 
quences.2  And  where  a  constable  went  with  a  warrant  to 
search  the  prisoner's  premises  for  stolen  iron,  and  almost  im- 
mediately after  he  was  taken  away  from  the  premises,  at  the 
conclusion  of  the  search,  his  wife  carried  some  tin  under  her 
cloak  from  a  warehouse  on  the  premises,  Mr.  Justice  Coleridge, 
on  the  trial  of  the  prisoner  for  receiving  stolen  brass  and  tin, 
held  that  it  was  for  the  jury  to  consider  whether  her  posses- 
sion was  not  the  prisoner's,  she  being  upon  the  premises,  and 
all  the  circumstances  being  taken  into  consideration,  and  that 
it  was  not  like  the  case  where  the  wife  is  in  possession  of 
stolen  property  at  a  distance  from  the  premises  of  her  husband.^ 
Where  the  defendant  was  found  guilty  of  the  theft  of  a 
woman's  cloak,  but  two  months  after  the  cloak  was  missed 
it  was  found  in  the  defendant's  house  in  a  trunk  used  by  both 
him  and  his  wife,  neither  was  called  on  to  explain  the  pos- 
session. On  appeal  it  was  said  that  the  facts  applied  as  well 
to  the  wife  as  to  the  defendant,  and  there  being  no  sufficient 
circumstances  developed  by  the  evidence  to  fix  a  rational  con- 
viction in  the  mind  that  one  rather  than  the  other  was  the 
guilty  party,  the  judgment  was  reversed.*  Where  it  is  shown 
that  the  wife  was  with  the  husband  when  the  goods  were 
stolen,  participating  in  the  larceny,  her  possession  is  crimin- 
ating evidence  against  both.^ 

AVhether  under  the  particular  circumstances  of  the  case  the 
property  is  to  be  considered  in  the  possession  of  the  defendant, 
or  not,  is  a  question  for  the  jury.^  In  the  case  last  cited  the 
accused  was  indicted  for  the  larceny  of  certain  cattle  which 
were  found  at  his  father's.     There  was  testimony  tending  to 

1  Reg.  V.  Banks,  1  Cox  C.  C.  238 ;  State  v.  Johnson,  1  Winst.  238. 

2  Reg.  V.  McClarens,  3  Cox  C.  C.  425.  And  see  Reg.  v.  Brook.  6  Cox  C. 
C.  151.  2  Reg.  V.  Mansfield,  1  C.  &  M.  342. 

*  Perkins  v.  State,  32  Tex.  109.         ^  state  v.  Philps,  91  Mo.  478. 
6  State  V.  Brewster,  7  Vt.  118  ;  State  v.  Van  Winkle,  80  la.  15. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  93 

show  that  the  defendant  made  his  home  at  his  father's.  He 
was  a  single  man,  and,  so  far  as  appeared,  had  no  other  home. 
He  always  came  there  to  stay  when  not  at  work  elsewhere, 
and  when  there  worked  on  the  farm.  In  his  testimony  he 
spoke  of  the  place  as  "  our  house."  From  this  the  jury  might 
find  possession  in  the  defendant.  And  where  the  evidence 
tended  to  prove  that  the  husband  of  the  defendant  aided  in 
the  commission  of  the  theft,  it  was  permitted  the  State  to  show 
that  part  of  the  stolen  property  was  found  in  his  possession.^ 

On  tlie  trial  of  two  men  at  Aberdeen,  autumn  circuit,  1824, 
it  appeared  that  a  carpenter's  workshop  at  Aberdeen  was 
broken  open  on  a  particular  night,  and  some  tools  carried  oif, 
and  that  on  the  same  night  the  counting-houses  of  Messrs. 
Davidson,  and  of  Messrs.  Catto  and  Co.,  in  diiferent  parts  of 
that  city,  were  broken  into,  and  goods  and  money  to  a  consid- 
erable extent  stolen.  The  prisoners  were  met  at  seven  on  the 
following  morning  in  one  of  the  streets  of  Aberdeen,  at  a  dis- 
tance from  either  of  the  places  of  depredation,  by  two  of  the 
police.  Upon  seeing  the  officers  they  began  to  run  ;  and  being 
pursued  and  taken,  there  was  found  in  the  possession  of  each 
a  considerable  quantity  of  the  articles  taken  from  Catto  and 
Co.,  but  none  of  the  things  taken  from  the  carpenter's  shop  or 
Davidson's.  But  in  Catto  and  Co.'s  warehouse  were  found  a 
brown  coat  and  other  articles  got  from  Davidson's  which  had 
not  been  there  the  preceding  evening  when  the  shop  was  locked 
up ;  and  in  Davidson's  were  found  the  tools  which  had  been 
abstracted  from  the  carpenter's.  Thus,  the  recent  possession 
of  the  articles  stolen  from  Catto  and  Co.'s  proved  that  the 
prisoners  were  the  depredators  in  that  warehouse ;  while  the 
fact  of  the  articles  taken  from  Davidson's  having  been  left 
there,  connected  them  with  that  prior  housebreaking ;  while 
again,  the  chisels  belonging  to  the  carpenter's  shop,  found  in 
Davidson's,  identified  the  persons  who  brok£  mto  that  last 
house  with  those  who  committed  the  original  theft  at  the  car- 
penter's.    The  prisoners  were  convicted  of  all  the  thefts.^ 

A  still  stronger  case  of  the  same  kind  occurred  at  Aberdeen, 
in  April,  1826,  on  the  trial  of  a  man  who  was  accused  of  no 
fewer  than  nine  different  acts  of  theft  by  housebreaking,  com- 

1  State  V.  Wohlman,  34  Mo.  482. 

2  Rex  V.  Downie  and  Milne,  Alison's  Princ.  313  ;  2  Mascardus,  ut  siqjra, 
Concl.  Dcecxxxi. 


94  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

mitted  in  and  around  that  place  at  various  times  during  the 
summer  of  1825  and  the  following  winter.  No  suspicion  had 
been  awakened  against  the  prisoner,  who  was  a  carter,  living 
an  industrious  and  apparently  regular  life,  until  one  occasion, 
when  some  of  the  stolen  articles  having  been  detected  in  a 
broker's  shop,  and  traced  to  his  custody,  a  search  was  made, 
and  some  articles  from  all  the  houses  broken  open  found 
amongst  an  immense  mass  of  other  goods,  evidently  stolen,  in 
a  large  chest,  and  about  various  parts  of  the  prisoner's  house. 
Their  number  and  variety,  and  the  place  where  they  were 
found,  were  quite  sufficient  to  convict  him  of  receiving  the 
stolen  property ;  but  as  they  were  discovered  at  the  distance 
of  many  months  from  the  times  when  the  various  thefts  had 
been  committed,  the  difficulty  was  how  to  connect  him  Avith 
the  actual  theft.  The  charges  selected  for  trial  were  five  in 
number,  and  as  nearly  connected  with  each  other  in  point  of 
time  as  possible.  In  none  of  them  was  the  prisoner  identified 
as  the  person  who  had  broken  into  the  houses,  although  the 
thief  had  been  seen,  and  more  than  once  fired  at ;  but  in  all 
the  first  four  houses  which  had  been  broken  into  were  discov- 
ered some  of  the  articles  taken  from  the  others,  and  in  the 
prisoner's  custody  were  found  some  articles  taken  from  them 
all,  which  sufficiently  proved  that  all  the  depredations  had 
been  committed  by  one  person  ;  and  the  mark  of  an  iron  in- 
strument was  found  on  three  of  the  windows  broken  open, 
which  coincided  exactly  with  a  chisel  left  in  the  last  house. 
Two  days  after  the  housebreaking  of  that  house,  an  old  watch, 
part  of  the  stolen  property,  was  sho^vn  by  the  prisoner  to  a 
shopkeeper,  to  whom  he  soon  afterwards  sold  it,  and  by  him 
delivered  up  to  the  officers.  Upon  this  evidence  the  prisoner 
was  convicted  of  all  the  charges  of  housebreaking.^ 


Section  IV. 

The  Nature  of  the  Crime  to  he  Inferred. 

The  recent  possession  of  stolen  property  may  sometimes  be 
referable,  not  to  the  crime  of  theft,  but  to  that  of  having  received 
it  with  a  guilty  knowledge  of  its  having  been  stolen.     There  is 
1  Rex  r.  Bowman,  Alison's  Princ.  314. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  95 

no  presumption  that  recent  possession  points  more  to  stealing 
than  receiving.  In  no  case  can  recent  possession  be  said  to  be 
exclusively  prima  facie  evidence  of  stealing  rather  than  of  re- 
ceiving, unless  the  party  is  found  so  recently  in  possession  of 
the  property,  and  under  such  circumstances,  as  to  exclude  the 
possibility  of  receiving.^  In  the  case  just  cited,  nothing  appear- 
ing except  that  the  prisoner  was  found  in  possession  of  the 
sheep  stolen,  several  weeks  after  the  theft,  he  was  held  to  have 
been  properly  convicted  of  receiving.  Four  persons  were  found 
guilty  of  housebreaking  on  proof  of  the  recent  possession  of  the 
goods,  and  narrowly  escaped  execution,  the  offence  at  that 
time  being  capital ;  but  it  was  afterwards  ascertained  that  one 
of  them,  who  had  long  been  known  as  a  receiver  of  stolen 
goods,  knew  nothing  of  the  robbery  until  after  it  had  been 
committed,  and  had  purchased  the  goods  from  the  real  thieves 
the  day  after  the  robber3\2 

The  difficulty  of  referring  the  act  of  possession  specifically 
to  one  of  those  crimes  frequently  led  to  the  failure  of  justice  ; 
thus,  where  stolen  goods  were  found  shortly  after  the  theft, 
concealed  in  an  old  engine-house,  and  the  place  being  watched, 
the  prisoners  were  seen  to  go  there  and  take  them  away,  but, 
being  indicted  as  receivers,  they  were  acquitted ;  Mr.  Justice 
Patteson  being  of  opinion  that  this  seemed  to  be  evidence  rather 
of  a  stealing  than  a  receiving.^  This  was  reviewed  in  England 
by  St.  11  &  12  Yict.  c.  46,  §  3,  which  provided  that  in  every 
indictment  for  feloniously  stealing,  a  count  might  be  added  for 
feloniously  receiving  the  same  propert}",  knowing  it  to  have 
been  stolen,  and  that  in  an  indictment  for  feloniously  receiving, 
a  count  might  be  added  for  felonious!}^  stealing  the  same 
property.     And  similar  statutes  are  in  force  in  this  country.^ 

It  is  not  necessary  that  the  receiver  of  stolen  property  should 
have  obtained  a  guilty  knowledge  by  direct  information  ;  it  is 
sufficient  if  the  circumstances  under  which  it  was  received  were 

^  Reg.  V.  Langmead,  9  Cox  C.  C.  464.  And  see  Gregory  v.  Richard,  8 
Jones'  L.  410  ;  People  v.  Antonio,  27  Cal.  404 ;  State  v.  Jennet,  88  N.  C, 
665  ;  Beck  v.  State,  44  Tex.  430  ;  Yates  v.  State,  37  Tex.  202. 

-  Rex  V.  Ellis,  Sessions  Papers  &  A.  R.  1831. 

3  Reg.  V.  Dursley,  6  C.  &  P.  899.  And  see  Rex  v.  Dyer,  2  East  P.  C.  767 ; 
Rex  V.  Howell,  Id.  768. 

4  Trimble  v.  State,  18  Tex.  Crini.  App.  632  :  Com.  v.  O'Connell,  12  Allen 
(Mass.),  451.  See  also  State  v.  Stimson,  45  Me.  608  ;  State  v.  Moultrie,  33 
La.  Ann.  1146. 


96  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

such  as  must  have  satisfied  any  reasonable  mind  that  it  must 
have  been  dishonestly  obtained  ;  as,  if  he  purchased  it  at  sus- 
picious and  unseasonable  times,  or  from  persons  who  in  the 
ordinary  course  of  things  could  not  fairly  be  considered  as  the 
unsuspected  owners  of  property  of  the  particular  description, 
or  had  secreted  or  endeavored  to  secrete  it,  or  attempted  to  ex- 
plain the  manner  of  acquisition  by  falsehood  or  prevarication.^ 
And  the  fact  that  property  is  saleable  merchandise,  having  a 
market  value,  and  that  it  is  offered  for  one-third  its  value,  ar^d 
that  the  offers  to  sell  are  repeated  from  time  to  time,  are  cir- 
cumstances of  an  unusual  character  calculated  to  excite  the 
suspicions  of  an  honest  man,  and  are  sufficient  to  go  to  the  jury 
on  the  question  of  guilty  knowledge.  A  pawn  of  property  at 
one-third  its  value  would  not  be  evidence  that  it  was  stolen  ; 
but  a  sale  of  marketable  property  at  that  price  might  be  most 
significant.^ 

However,  the  result  will  depend  on  the  circumstances  of  each 
particular  case.  In  an  early  case  in  New  York  the  indictment 
was  for  receiving  stolen  goods,  knowing  them  to  be  stolen,  and 
the  circumstances  against  the  defendant  were  that  he  bought 
the  goods  at  a  reduced  price ;  that  the  amount  was  large ;  that 
he  bought  from  a  young  man  whom  he  did  not  know  and  with- 
out making  any  inquiry ;  that  the  goods  were  found  in  a  trunk, 
thrown  in  in  a  confused  manner,  and  in  an  upstairs  room  rather 
than  in  his  store.  But  there  were  circumstances  in  favor  of 
the  accused,  and  evidence  was  introduced  of  his  hitherto  unex- 
ceptionable character,  and  he  was  acquitted.^ 

The  possession  of  stolen  goods  recently  after  the  loss  of  them 
may  be  indicative,  not  merely  of  the  offence  of  larceny,  or  of 
receiving  with  guilty  knowledge,  but  of  any  other  more  aggra- 
vated crime  which  has  been  connected  with  theft.*  And  the 
presumption  applies  as  well  to  arson  and  burglary  as  to  larceny.^ 

Upon  an  indictment  for  arson,  proof  that  property  which 
was  in  the  house  at  the  time  it  was  burnt  was  soon  afterwards 
found  in  the  possession  of  tlie  prisoner  was  held  to  raise  a  pre- 

1  Alison's  Princ.  330. 

2  Copperman  v.  People,  56  N.  Y.  591.     And  see  Hale's  P.  C.  619. 
2  People  V.  Cochran,  1  Wheel.  Cr.  Rep.  81. 

4  Knickerbocker  v.  People,  43  N.  Y.  177. 

6  State  V.  Moore,  23  S.  W.  1086  ;  State  v.  Warford,  15  S.  W.  886  ;  State  v. 
Owens,  79  Mo.  619  ;  State  v.  Wheeler,  79  Mo.  366  ;  State  v.  Babb,  76  Mo. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  97 

sumption  that  he  was  present  and  concerned  in  the  offence.^ 
And  again,  it  was  held  proper  to  show,  on  a  trial  for  arson, 
that  goods  claimed  by  the  prosecution  to  have  been  taken  from 
the  burned  house  on  the  day  of  the  fire,  together  with  other 
goods  not  shown  to  have  been  taken  from  the  house,  but  be- 
longing to  the  owner  of  the  house,  were  found  locked  up  in 
trunks  in  the  defendant's  possession.^ 

A  boy  on  being  taxed  with  a  burglary,  and  on  being  told  that 
the  witness  "  knew  all  about  it  and  he  might  as  well  own  up," 
went  away,  and  in  a  short  time  returned  with  the  article  stolen 
and  delivered  it  up,  but  without  making  a  confession.  He  was 
convicted ;  but  the  judge  having  failed  to  give  the  charge 
required  relating  to  circumstantial  evidence,  the  judgment  was 
reversed.^ 

In  a  Georgia  case,*  the  court  seemed  to  doubt  whether  mere 
possession  of  the  lost  property  might  not  be  sufficient  to  con- 
vict of  burglary  ;  but  there  was  no  positive  decision.  And  it 
has  frequently  been  asserted  that  possession  alone,  unsupported 
by  other  facts  indicative  of  guilt,  is  not  prima  facie  evidence 
that  the  accused  committed  the  burglary.^  Where  the  defend- 
ant was  found  in  possession  of  a  satchel  containing  the  stolen 
property,  this  alone  was  held  insufficient  to  convict  of  burglary.^ 
But  in  a  case  where  goods  have  been  feloniously  taken  by  means 
of  a  burglary,  and  they  are  soon  after  found  in  the  actual  and 
exclusive  possession  of  a  person  who  gives  a  false  account,  or 
refuses  to  give  any  account  of  the  manner  in  which  he  came  to 
the  possession,  proof  of  such  possession  and  guilty  conduct  is 
presumptive  evidence,  not  only  that  he  stole  the  goods,  but 
that  he  made  use  of  the  means  by  which  access  to  them  was 
obtained.^ 

In  another  case,  where  burglary  was  charged,  the  entry 
was  proved  to  have  been  made  through  a  window  which  was 
broken  open  in  the  back  of  the  house.     The  impress  of  the 

1  Rex  V.  Rickman,  East's  P.  C.  1035.     And  see  Rex  v.  Fuller,  R.  &  R.  308, 
and  Fletcher  v.  State,  17  S.  E.  100  ;  90  Ga.  468. 

2  State  V.  Vatter,  71  la.  557  ;  32  N.  W.  506. 
^  Parker  v.  State,  20  Tex.  Crim.  App.  451. 
*  Houser  v.  State,  58  Ga.  78. 

6  Ryanu.  State,  83  Wis.  486;  Stuart  v.  People,  42  Mich.  255;  People  v.  Frazier, 
2  Wheel.  Cr.  Rep.  55  ;  Black  v.  State,  18  Tex.  Crim.  App.  124. 

«  People  V.  Gordon,  40  Mich.  716. 

7  Com.  V.  Willard,  1  Mass.  6.    See  Dimmitt  v.  State  (la.),  55  N.  W.  531. 

7 


98  RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

prisoner's  shoe  was  proved  to  have  been  found  in  the  garden 
in  front  of  the  house  ;  but  this  was  held  not  sufficient  to  con- 
nect the  prisoner  with  the  crime,  because  it  was  not  proven 
that  the  impression  was  not  made  in  the  daytime,  and  while 
the  prisoner  was  lawfully  in  the  garden.  The  prisoner  was 
found  on  the  night  following  the  burglary  asleep  in  a  corn- 
bin  in  an  open  pig-house.  Just  outside  the  bin,  and  also  in 
another  part  of  the  ])ig-house,  were  found  concealed  some  of  the 
stolen  articles.  But  the  prisoner  claimed  none  of  them,  and  his 
connection  with  them  was  not  traced.  The  jury  was  charged 
that  possession  had  not  been  proved  and  an  acquittal  was 
directed. 1 

But  it  is  not  necessary  that  there  should  be  direct  evidence, 
in  addition  to  the  possession  of  the  stolen  property,  it  being 
sufficient  if  there  are  other  circumstances  connecting  the  de- 
fendant with  the  crime.2 

This  particular  fact  of  presumption  commonly  forms  also  a 
material  element  of  evidence  in  cases  of  murder ;  which  special 
application  of  it  has  often  been  emphatically  recognized.^  It 
is  upon  the  same  principle  that  a  sudden  and  otherwise  inex- 
plicable transition  from  a  state  of  indigence  and  a  consequent 
change  of  habits,  or  a  profuse  or  unwonted  expenditure  incon- 
sistent with  the  position  in  life  of  the  party,  is  sometimes  a 
circumstance  extremely  unfavorable  to  the  supposition  of  in- 
nocence.* 

In  a  case  before  cited,^  it  Avas  proved  that  the  prisoner,  the 
son  of  a  farmer  neighboring  to  the  murdered  man,  was  with- 
out means  of  his  own,  but  that  on  the  day  of  the  crime  he  had 
bought  clothing  and  was  in  possession  of  a  considerable 
quantity  of  coin.  This,  united  with  the  facts  that  the  deceased 
had  in  his  possession  a  year  or  so  before  an  amount  of  coin, 
that  he  lived  remote  from  any  place  of  deposit,  and  that  it  was 
a  time  of  suspension  of  specie  payments,  when  silver  and  gold 
would  likely  be  hidden  around  the  man's  house,  was  a  strong  in- 
dication connecting  the  prisoner  vnth.  the  crime.     In  another 

1  Reg.  V.  Coots,  2  Cox  C.  C.  188. 

2  People  V.  Sansome  (Cal,),  33  Pac.  202:  84  Cal.  449. 

3  People  V.  Johnson,  2  Wheel.  361  ;  Reg.  v.  Manzano,  2  F.  &  F.  64  ;  Lind- 
say V.  People,  63  N.  Y.  143.  And  see  also  Pharr  v.  State,  and  Betts  v. 
State,  infra. 

*  Rex  V.  Burdock,  Bristol  Summer  Ass.,  1835;  Rex  v.  Varnham,  infra; 
Brown  v.  Com.,  infra.  ^  Brown  v.  Com.,  76  Pa.  St.  319. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.  99 

murder  trial  ^  the  fact  that  the  defendant  had  in  his  possession 
at  the  time  of  his  arrest,  on  the  day  after  the  murder,  property 
which  was  in  the  possession  of  the  deceased  just  before  the 
murder,  was  admissible  to  go  to  the  jury  with  the  other  evi- 
dence, to  be  considered  for  whatever  value  they  might  put 
upon  it.  Again,  the  facts  that  the  prisoner  had,  at  the  time  of 
his  arrest,  money  which  he  attempted  to  conceal  by  throwing 
it  behind  him,  and  that  he  denied  all  knowledge  of  it  on  being 
questioned,  and  that  the  denomination  of  one  of  the  bills  cor- 
responded with  that  of  bills  the  murdered  man  was  kno^vn  to 
have  received  a  short  time  before  he  was  killed,  were  admitted.^ 
A  prisoner  had  about  the  amount  of  mone}''  which  the  deceased 
probably  had  with  him  at  time  of  his  death,  but  pretended  to 
have  only  a  few  dollars,  and  after  arrest  attempted  to  conceal 
the  money.^ 

But  the  rule  must  be  applied  with  discrimination,  for  the 
bare  possession  of  stolen  property,  though  recent,  uncorrob- 
orated by  other  evidence,  is  sometimes  fallacious  and  dangerous 
as  a  criterion  of  guilt,  being  consistent  in  many  instances  with 
entire  innocence.*  Sir  Matthew  Hale  lays  it  down,  that  "  if  a 
horse  be  stolen  from  A.,  and  the  same  day  B.  be  found  upon 
him,  it  is  a  strong  presumption  that  B.  stole  him ;  yet,"  adds 
that  excellent  lawyer,  "  I  do  remember  before  a  learned  and 
very  wary  judge,  in  such  an  instance,  B.  was  condemned  and 
executed  at  Oxford  Assizes,  and  yet  within  two  assizes  after,  C, 
being  apprehended  for  another  robbery,  and  convicted,  upon 
his  judgment  and  execution  confessed  he  was  the  man  that  stole 
the  horse,  and  being  closely  pursued,  desired  B.,  a  stranger, 
to  walk  his  horse  for  him,  while  he  turned  aside  upon  a  neces- 
sary occasion,  and  escaped ;  and  B.  Avas  apprehended  with  the 
horse  and  died  innocently."  ^  A  very  similar  case  occurred  at 
the  Surrey  Summer  Assizes,  1827,  where  a  young  man  was 
convicted  of  stealing  two  oxen.  The  prisoner,  having  finished 
his  apprenticeship  to  a  butcher  at  Monkwearmouth,  went  to 
visit  an  uncle  at  Portsmouth,  from  whence  he  set  out  to  return 
to  London.  On  the  road  between  Guildford  and  London, 
about  three  o'clock  in  the  morning,  he  overtook  a  man  riding 

1  Pharr  v.  State,  9  Tex.  Crim.  App.  129. 

2  Betts  V.  State,  66  Ga.  508.  «  State  v.  Holden,  42  Minn.  350. 
*  3  Greenl.  on  Ev.  §  31 ;  Stokes  v.  State,  58  Miss.  677. 

5  2  Hale's  P.  C.  C.  39. 


100         RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

upon  a  pony  and  driving  two  oxen,  who,  finding  that  he  was 
going  to  London,  offered  him  five  shillings  to  drive  them  for 
him  to  London,  which  he  agreed  to  do,  the  man  engaging  to 
meet  him  at  Westminster  Bridge.  At  Wandsworth  he  was 
apprehended  by  the  prosecutor's  son,  and  charged  with  steal- 
ing the  oxen.  On  his  apprehension  he  assumed  a  false  name, 
under  which  he  was  tried,  to  conceal  his  situation  from  his 
friends,  and  convicted,  but  on  a  representation  of  the  circum- 
stances he  received  a  pardon,  when  on  the  point  of  being  trans- 
ported for  life.^  He  had  been  the  dupe  of  the  real  thief,  who, 
finding  himself  closely  pursued,  had  thus  contrived  to  rid  him- 
self of  the  possession  of  the  cattle.  On  a  trial  for  murder  the 
principal  evidence  against  the  prisoner  was  that  in  his  posses- 
sion were  found  clothes  which  were  identified  as  having  been 
in  the  house  on  the  morning  of  the  murder.  The  prisoner  set 
up  the  defence  that  the  clothes  had  been  given  him  by  another, 
presumably  to  facilitate  the  latter's  escape.  But  the  jury  re- 
turned a  verdict  of  guilty.'^ 

Identity  of  stolen  goods  is  sufficiently  proved  by  testimony 
that  they  are  goods  of  the  same  description  as  those  stolen,  and 
by  the  positive  identification  of  other  stolen  goods  found  with 
them,  and  the  fact  that  the  defendant  in  whose  possession  the 
goods  were  found,  was  employed  in  the  place  from  which  the 
goods  were  stolen  at  the  time  they  were  taken  .^  And  the  rule 
is  fairly  and  properly  applied  in  circumstances  where,  though 
positive  identification  is  impossible,  the  possession  of  the  prop- 
erty cannot  without  violence  to  every  reasonable  hypothesis 
but  be  considered  of  a  guilty  character  ;  as  in  the  case  of  per- 
sons employed  in  carrying  tea,  sugar,  tobacco,  and  other  like 
articles  from  ships  and  wharfs.  Cases  have  frequently  occurred 
of  convictions  of  larceny,  in  such  circumstances,  upon  evidence 
that  the  parties  were  detected  with  property  of  the  same  kind 
upon  them  recently  after  coming  from  such  places,  although 
the  identity  of  the  property  as  belonging  to  any  particular 
person  could  not  be  proved  otherwise.*  On  this  principle  two 
men  were  convicted  of  larceny  upon  evidence  that  the  prose- 
cutor's soap-manufactory,  near  Glasgow,  had  been  broken  into 
in  the  night  and  robbed  of  about  120  lbs.  of  yellow  soap,  and 

1  Rex  V.  Gill,  Session  Papers  and  A.  R.  1827. 

2  Reg.  V.  Manzano,  2  F.  &  F.  64. 

3  People  V.  Ferguson,  1  City  Hall  Rec.  65.  *  2  East's  P.  C.  1035. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.         IQl 

that  the  prisoners  were  met  on  the  same  night,  about  eleven 
o'clock,  by  the  watchman,  near  the  centre  of  the  city,  from 
whom  they  attempted  to  escape,  one  bearing  on  his  back  forty 
pounds  of  soap  of  the  same  size,  shape,  and  make  as  that  stolen 
from  the  prosecutor's  premises,  and  the  other  with  his  clothes 
soiled  over  with  the  same  substance,  though  the  property  could 
not  be  more  distinctly  identilied.i 

And  where  the  prosecuting  witness  testified  that  bacon  which 
had  been  stolen  was  unsmoked  and  had  a  yellow  mould  on  it, 
and  the  bacon  found  was  unsmoked  and  had  yellow  mould  on 
it  and  she  believed  it  to  be  hers,  there  being  some  evidence  that 
the  defendant  was  connected  with  the  theft,  he  was  convicted.^ 
Property  charged  to  have  been  stolen  was  28  bars  of  pig-iron. 
And  the  evidence  of  the  agent  having  it  in  charge,  and  who  was 
sole  agent  at  the  time  for  its  sale,  was,  that  it  bore  the  marks 
and  presented  the  appearance  of  the  iron  in  his  possession, 
some  of  which,  he  testified,  had  been  taken  away  from  the 
premises  where  it  was  deposited,  and  from  a  boat  having  a 
portion  of  it  on  board,  during  the  night,  in  the  early  morning 
of  which  the  defendant  was  arrested.  His  testimony  was  that 
he  did  identify  the  iron  when  he  saw  it  in  the  following  after- 
noon by  its  marks  and  looks.  This,  with  the  fact  that  it  was 
found  on  the  defendant's  boat  on  the  river,  at  half-past  three 
o'clock  in  the  morning,  and  his  subsequent  statement  that  it 
was  bought  of  a  canal  captain  for  fifteen  dollars,  when  the  un- 
contradicted evidence  was  that  its  value  was  about  fifty-two 
dollars,  were  held  sufficient  to  justify  the  submission  of  the 
question  of  the  identity  of  the  property  to  the  jury.  As  will 
be  seen,  in  this  case,  the  evidence  of  the  agent  showed  that  a 
larceny  of  the  iron  had  been  probably  committed ;  that  the 
quantity  taken  was  similar  to  that  found  in  the  prisoner's  pos- 
session ;  that  it  had  the  marks  and  appearances  of  the  iron  in 
the  agent's  custody,  and  that  no  other  iron  of  that  description 
was  at  the  time,  probably,  on  deposit  or  for  sale  in  the  vicinity.^ 

The  possession  of  money  of  the  same  Idnd  as  that  which  was 
recently  stolen  is  usually  of  slight,  if  any,  Aveight  as  evidence 
to  prove  the  guilt  of  the  person  in  whose  possession  it  is  found, 
if  money  of  tliis  kind  is  in  general  circulation  at  that  place  ;  but 
it  is  of  much  greater  significance  when  that  kind  of  money  is 

1  Rex  V.  McKechnie  et  al.,  Alison's  Princ.  332. 

2  State  V.  Kent,  65  N.  C.  311.  «  Dillon  v.  People,  1  Hun,  670. 


102         RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME. 

rarely  seen  in  circulation  at  that  place,  and  its  value  as  evidence 
is  further  increased  where  both  the  money  found  in  the  posses- 
sion of  the  accused  and  that  which  was  stolen  consists  of  a 
combination  of  pieces  of  such  money  ;  as,  in  one  case,  of  a  large 
number  of  Chilian  half  ounces  and  a  single  Peruvian  ounce.* 
When  stolen  bank  bills  have  no  particular  marks  of  identifica- 
tion, but  the  manner  of  folding,  denomination,  and  general  ap- 
pearance is  the  same  as  of  those  found  in  the  possession  of  the 
defendant,  this  is  suiRcient  to  cast  on  him  burden  of  accounting 
for  his  possession.*  And  where  bank  bills  of  the  same  denom- 
ination as  the  money  stolen  were  found  in  the  possession  of  the 
defendant,  it  was  held  that  he  could  not  offer  by  way  of  ex- 
planation— without  showing  that  the  bills  were  the  same — that 
two  or  three  months  before  he  had  bills  of  a  like  denomination.^ 
It  is  not  necessary  that  the  owner  of  stolen  goods  found  in 
the  possession  of  the  defendant  should  give  a  description  of 
them  sufficient  to  identify  them  before  they  are  exhibited  to 
him  in  court  for  his  identification.^  And  on  a  trial  for  the 
larceny  of  certain  horses  the  objection  that  the  testimony  of  the 
witness  who  saw  the  defendant  shortly  after  the  larceny  in 
possession  of  some  horses,  does  not  sufficiently  identify  such 
horses  as  the  ones  that  were  stolen,  goes  not  to  the  competency 
of  the  testimony  but  to  its  weight.^ 


Section  V. 

Corroborative  Circumstances. 

It  is  seldom,  however,  that  juries  are  required  to  determine 
upon  the  effect  of  evidence  of  the  mere  recent  possession  of 
stolen  property ;  from  the  very  nature  of  the  case,  the  fact  is 
generally  accompanied  by  other  corroborative  or  explanatory 
circumstances  of  presumption.  If  the  party  have  secreted  the 
property,  if  he  deny  that  it  is  in  his  possession,  and  such  denial 
be  discovered  to  be  false,  if  he  cannot  show  how  he  become 
possessed  of  it,  if  he  give  false,  incredible,  or  inconsistent  ac- 
counts of  the  manner  in  which  he  acquired  it,  as  that  he  found 

1  People  V.  Getty,  49  Cal.  581.     See  opinion  delivered  in  this  case. 
'  State  V.  Buckley,  60  la.  471.  »  State  v.  Graham,  65  la.  617. 

*  State  V,  LuU,  37  Me.  246.  «  State  v.  Ingram,  16  Kan.  14. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.         103 

it,  or  that  it  had  been  given  or  sold  to  him  by  a  stranger,  or 
left  at  his  house,  if  he  have  disposed  of  or  attempted  to  dispose 
of  it  at  an  unreasonably  low  price,  if  he  have  absconded  or 
endeavored  to  escape  from  justice,  if  other  stolen  property,  or 
house-breaking  tools,  or  other  instrmnents  of  crime  be  found  in 
his  possession,  if  he  were  seen  near  the  spot  at  or  about  the 
time  when  the  act  was  committed,  or  if  any  article  belonging 
to  him  be  found  at  or  near  the  place  where  the  theft  was  com- 
mitted, at  or  about  the  time  of  the  commission  of  the  offence, 
if  the  impression  of  his  shoes  or  other  articles  of  apparel  cor- 
respond with  marks  left  by  the  thieves,  if  he  have  attempted 
to  obliterate  from  the  articles  in  question  marks  of  identity,  or 
to  tamper  ^vith  the  parties  or  the  officers  of  justice,  these,  and 
all  like  circumstances,  are  justly  considered  as  throwing  light 
upon  and  explaining  the  fact  of  possession,  and  render  it  morally 
certain  that  such  possession  can  be  referable  only  to  a  criminal 
origin,  and  cannot  otherwise  be  rationally  accounted  for. 

The  possession  of  a  large  amount  of  money  several  weeks 
after  the  criminal  act,  not  identified  as  the  stolen  property,  in 
connection  with  the  previous  poverty  of  the  defendant,  was 
admitted  as  tending  to  prove  a  single  act  of  larceny.  ^ 

It  is  not  necessary  that  the  possession  of  all  the  goods  stolen 
should  be  traced  to  the  defendant.  The  possession  of  a  part  of 
the  stolen  goods,  of  the  smallest  value,  in  connection  with  other 
circumstances  may  clearly  fix  the  guilt  of  stealing  all  upon  the 
defendant.'^  Where  the  defendant  gave  away  at  the  same  time 
different  recently  stolen  articles,  this  fact  is  sufficient  to  warrant 
the  conclusion  that  he  took  the  articles  at  one  time.* 

^  Com.  V.  Montgomery,  11  Met,  534. 

2  State  V.  Phelps,  91  Mo.  478.  To  the  same  effect,  see  State  v.  Beatty,  90 
Mo.  142  ;  State  v.  Owens,  79  Mo.  619  ;  State  v.  Davis,  73  Mo.  129  ;  State  v. 
Barker,  64  Mo.  282  ;  Knickerbocker  v.  People,  43  N.  Y.  177. 

«  Jack  V.  State,  20  Tex.  Crim.  App.  656. 


CHAPTER  V. 

UNEXPLAINED    APPEARANCES    OF  SUSPICION,    AND    ATTEMPTS 
TO   ACCOUNT   FOR  THEM   BY   FALSE    REPRESENTATIONS. 

As  a  general  rule,  to  which  the  exceptions  can  be  but  rare, 
it  is  a  reasonable  conclusion,  that  an  innocent  party  can  explain 
suspicious  or  unusual  appearances,  connected  with  his  person, 
dress,  or  conduct ;  and  that  the  desire  of  self-preservation,  if 
not  a  regard  for  truth,  will  prompt  him  to  do  so.  The  ingen- 
uous and  satisfactory  explanation  of  circumstances  of  apparent 
suspicion  always  operates  powerfully  in  favor  of  the  accused, 
and  obtains  for  him  more  ready  credence  when  the  explanation 
may  not  be  easily  verified.  On  the  other  hand,  the  force  of 
suspicious  circumstances  is  augmented  whenever  the  party 
attempts  no  explanation  of  facts  which  he  may  reasonably  be 
presumed  to  be  able  and  interested  to  explain.^  The  mere  pre- 
sumption of  innocence  does  not  overthrow  the  presumptions 
from  the  unexplained  facts.^  A  woman  Avas  indicted  for  the 
murder  of  her  infant  child.  The  dead  body  of  a  newly-born 
and  well-developed  child  had  been  found  in  a  dry  well  within 
a  few  yards  of  the  defendant's  house.  Its  skull  was  fractured, 
and  a  cord  was  tightly  fastened  around  its  neck.  The  Avoman 
denied  having  given  birth  to  a  child.  But  it  was  shown  that 
she  had  been,  a  few  days  before  the  discovery  of  the  body,  in 
an  advanced  stage  of  pregnancy,  and  that  later  all  signs  of 
pregnancy  had  disappeared.  Her  bed-clothing  and  mattress 
were  saturated  with  blood ;  and  she  was  seen  washing  clothes 
which  were  bloody,  and  refused  to  say  whose  clothes  they 
were.  The  defendant,  having  refused  to  offer  any  explanation 
as  to  any  of  the  suspicious  circumstances,  was  convicted.^ 

A  peculiar  case  was  a  proceeding  for  partition  by  one  claim- 
ing under  a  deed  which  purported  to  have  been  made  by  three 

1  State  V.  Ingram,  16  Kan.  14.  ^  Echols  v.  State,  81  Ga.  696. 

8  Echols  V.  State,  supra. 

104 


UNEXPLAINED  APPEARANCES  OF  SUSPICION.  105 

out  of  seven  heirs.  The  instrument  was  executed  by  the  marks 
of  the  makers,  when  it  was  known  that  they  could  write  their 
names,  and  it  was  not  brought  to  light  for  about  fourteen  years 
subsequent  to  its  date,  and  after  those  whose  deed  it  purported 
to  be  were  dead.  No  explanation  having  been  attempted  for 
such  unusual  circumstances,  the  petition  was  denied.^ 

Where  two  were  indicted  for  passing  a  counterfeit  bill,  it  was 
considered  a  strong  indication  of  their  guilt  that  on  their  ex- 
aminations each  charged  the  other  with  passing  the  bill,  and 
neither  of  them  gave  any  satisfactory  explanation  of  the  pos- 
session of  it.2 

As  has  been  heretofore  remarked,  in  cases  of  circumstantial 
evidence  the  jury  should  have  before  them  every  fact,  how- 
ever slight,  which  would  aid  them  in  reaching  a  satisfactory 
conclusion.^  Very  slight  circumstances,  when  taken  with  others, 
may  assume  importance ;  such  as,  that  a  light  was  seen  in  the 
house  of  the  prisoner  at  an  unusual  hour  of  the  night,  about 
the  time  when  he  was  supposed  to  have  murdered  the  deceased 
there.*  Evidence  was  admitted,  in  one  case,  that  the  defendant 
was  seen,  shortly  after  the  commission  of  the  theft  of  which  he 
was  accused,  on  an  untravelled,  out-of-the-way  road,  instead  of 
going  along  the  public  highway.^  A  woman  was  indicted  for 
the  murder  of  her  son-in-laAv  by  poison,  and  the  prosecution,  to 
support  the  contention  that  the  deceased's  wife  was  accessory 
to  the  crime,  were  allowed  to  show  that  the  two  women  slept 
together  on  the  night  after  the  murder,  and  that  they  were 
heard  whispering  together  for  some  time  after  retiring. 
Though  this,  standing  alone,  might  not  be  a  very  suspicious  cir- 
cumstance, it  was  rightly  submitted  to  the  jury  in  connection 
with  other  facts.^ 

Though  it  cannot  be  necessary  in  every  case  before  a  con- 
^"iction  for  burglary  can  be  had,  to  show  that  the  defendant 
was  seen  near  the  place  where  the  burglary  was  committed,  and 
about  the  time  of  its  commission,  yet  the  fact  that  he  was  so 
seen  may  be  a  circumstance  tending  to  show  guilt.^ 

1  Watson  V.  Robertson's  Heirs,  15  Tex.  333. 

2  Reynolds'  Case,  2  City  Hall  Rec.  47. 

8  Pogin  V.  State,  12  Tex.  Crim.  App.  283,  and  supra. 
*  People  V.  Johnson,  2  Wheel.  Cr.  Cas.  361. 
5  Green  v.  State,  12  Tex.  Crim.  App.  51. 
«  People  V.  Bemis,  51  Jlich.  422. 
7  People  V.  Flynn,  78  Cal.  511. 


106  UNEXPLAINED  APPEARANCES  OF  SUSPICION, 

It  is  a  circumstance  of  suspicion  against  the  accused  that  he 
was  in  the  company  of  one  known  to  have  been  implicated  in 
the  crime  charged  shortly  before,  or  soon  after,  the  commission 
of  such  crime,  especially  when  he  offers  no  explanation  of  his 
business  with  such  person.^  It  was  shown  in  one  case  that,  on 
the  day  after  the  theft,  the  accused  was  seen  talking  to  the  per- 
sons in  whose  possession  the  stolen  goods  were  found.^  The 
defendant  was  charged  with  having  committed  a  burglary  on 
November  2,  and  it  was  shown  that  on  October  25,  he  was  seen 
in  company  with  one  who  was  convicted  of  the  burglary 
charged,  that  they  occupied  a  room  together  before  and  after 
the  burglary,  and  that  they  were  seen  together  on  the  evening 
of  November  2.^  The  accused  was  seen  in  the  company  of  two 
men  who  were  identified  as  having  committed  a  robbery,  im- 
mediately before  the  offence,  riding  toward  the  place  of  the 
commission  of  the  offence,  and  again,  soon  after  the  offence, 
riding  away  from  the  place,  and  the  tracks  of  whose  horses  were 
found  near  the  place  of  the  robbery.    Defendant  was  convicted,* 

On  a  trial  for  larceny  from  a  building,  the  government  set 
up  the  theory  that  the  arrangement  was  that  one  defendant 
should  distract  the  attention  of  an  employer  in  the  building, 
while  the  other  should  steal  the  money,  and  a  third  person 
keep  watch  outside,  and  evidence  was  admitted  that  the  three 
Avere  seen  together  shortly  before  the  larceny  walking  toward 
the  place  of  the  larceny,  and  were  seen  together  in  the  same 
street  the  morning  after.^  On  a  trial  for  robbery,  testimony 
that  the  accused  was  seen  at  various  places  in  the  neighborhood 
on  the  day  preceding  the  night  of  the  robbery  ;  that  he  made 
inquiries  and  statements  about  purchasing  tobacco,  which  in- 
dicated that  they  were  pretexts  ;  that  he  had  apparently  some 
connection  with  two  other  strangers  whom  he  met  at  the  hotel, 
was  competent  as  circumstantial  evidence  in  connection  with 
the  narrative  of  the  prosecuting  witness.^  The  defendant, 
accused  of  homicide,  was  the  last  person  seen  with  the  deceased 
on  the  night  of  the  killing,  going  toward  the  spot  where  the 

1  Langford  v.  State,  17  Tex.  Crim.  App.  445. 

*  Langford  v.  State,  supra. 

«  People  V.  Burns,  67  Mich.  537. 

*  Odle  V.  State,  13  Tex.  Crim.  App.  612. 
6  Com.  V.  Griffin  et  al.,  4  Allen,  310- 

*  Com.  V.  Williams,  105  Mass.  62. 


AND  ATTEMPTS  TO  ACCOUNT  FOR  THEM.  107 

body  was  found.^  After  his  return  to  his  boarding-place  he 
asked  for  water,  and  was  heard  to  make  a  noise,  as  though 
washing  himself.  The  next  morning  he  traded  clothing  with 
a  third  party,  and  blacked  his  boots,  a  thing  he  had  not  been 
known  to  do  before  during  the  six  weeks  that  he  had  boarded 
in  that  place.  He  told  a  woman  whom  he  owed  that  he  had 
no  money  to  pay  her,  but  afterwards,  on  the  same  morning, 
made  another  woman  a  present  of  money  which  he  took  from 
a  pocket-book  identified  as  belonging  to,  or  exactly  like,  one 
OAvned  by  the  deceased.  He  was  heard  to  threaten  to  kill  wit- 
nesses if  they  swore  against  him.  These  circumstances  were 
held  sufficient,  in  the  absence  of  any  explanation,  to  justify  a 
verdict  of  guilty .^  Under  a  charge  of  larceny,  the  evidence 
showed  that  the  stolen  cotton  was  traced  to  the  vicinity  of  the 
defendant's  residence,  and  was  hidden  in  a  pine  thicket  near  by ; 
that  the  wagon  and  human  tracks,  which  led  to  the  point  Avhere 
the  cotton  was  deposited,  led  also  from  that  place  to  the  de- 
fendant's house ;  that  one  of  the  footprints  corresponded  with 
his  tracks,  which  had  some  marked  peculiarities,  and  the  im- 
pression made  by  the  wheels  of  the  wagon  strongly  resembled 
those  made  by  the  wheels  of  one  of  the  wagons  found  where 
the  defendant  lived  ;  and  that  no  other  person  dwelling  there 
had  so  large  and  peculiar  a  foot  as  he.  These  facts  not  being 
explained  by  the  prisoner,  a  conviction  was  held  to  have  been 
warranted.^ 

An  old  man  on  his  way  home  from  market,  where  he  had 
stayed  late,  was  attacked,  thrown  down,  and  robbed  by  three 
men,  one  of  whom  he  wounded  in  the  struggle  with  a  clasp- 
knife.  Upon  the  apprehension  of  one  of  the  robbers  at  the 
house  of  his  mother,  he  was  dressed  in  a  new  pair  of  trousers, 
and  the  constable  found  in  a  room  upstairs,  between  the  bed 
and  the  mattress,  a  pair  of  trousers  with  two  long  cuts  in  one 
thigh,  one  of  which  had  penetrated  through  the  lining,  and  Avas 
stained  with  blood  at  that  spot ;  and  the  holes  had  been  sewed 
with  thread  which  was  not  discolored,  showing  that  the  blood 
must  have  been  applied  to  the  cloth  previous  to  the  repair  ;  and 
a  corresponding  cut  bound  over  Avith  plasters  Avas  found  on  the 
prisoner's  thigh.     He  refused  to  give  any  explanation  of  the 

1  See  also  McGill  v.  State,  25  Tex.  App.  556. 

2  Jackson  v.  State,  9  Tex.  Crim.  App.  114. 

3  Bryan  v.  State,  74  Ga.  393. 


108  UNEXPLAINED  APPEARANCES  OF  SUSPICION, 

wound  or  of  the  cuts  in  the  garments,  and  was  convicted  and 
transported.^ 

It  was  considered  a  strong  circumstance,  justifying  sus 
picion,  of  one  accused  of  homicide,  that,  while  the  whole  com- 
munity was  in  great  excitement  over  the  murder,  though  he 
lived  within  a  convenient  distance,  he  neither  visited  the 
scene  of  the  murder,  nor  the  home  of  the  deceased,  nor  did  he 
offer  his  services  or  condolences,  in  any  manner,  to  the  bereaved 
family  .2 

But  circumstances  of  suspicion  merely,  without  more  conclu- 
sive evidence,  are  not  sufficient  to  justify  conviction,  even 
though  the  party  offer  no  explanation  of  them.^  It  is  not, 
for  instance,  a  sufficient  circumstance  to  authorize  a  conviction 
for  larceny  that  the  accused  had  been  keeping  bad  company,* 
Where  it  is  in  the  power  of  one  accused  of  crime  to  show,  if 
he  is  not  the  guilty  party,  Avhere  he  was  at  the  time  when  the 
crime  was  committed,  and  he  makes  no  effort  to  bring  forward 
such  evidence,  this  circumsto.nce  is  sufficient  to  create  a  strong 
presumption  against  him,  but  is  not  conclusive.^  Two  women 
were  indicted  for  coloring  a  counterfeit  shilling  and  sixpence, 
and  a  man  as  counselling  them ;  and  the  evidence  against  him 
was  that  he  visited  the  women  once  or  twice  a  week,  and  that 
the  rattling  of  copper  money  was  heard  while  he  was  Avith 
them  ;  that  once  he  Avas  counting  something  just  after  he  came 
out ;  that  on  going  to  the  room  just  after  their  apprehension,  he 
resisted  being  stopped,  and  jumped  over  a  wall  to  escape,  and 
that  there  Avere  found  upon  him  a  bad  three-shilling-piece  and 
five  bad  sixpences  :  upon  a  case  reserved,  the  judges  thought 
the  evidence  too  slight  to  convict  him^ 

So  natural  and  forcible  is  this  rule  of  presumption,  that  the 
guilty  are  instinctively  compelled  to  endeavor  to  evade  its  ap- 
plication, by  giving  some  explanation  or  interpretation  of 
adverse  facts,  consistent,  if  true,  Avith  innocence ;  but  its  force 
is  commonly  aggravated  by  the  improbability,  or  absurdity 
even,  of  such  explanations,  or  the  inconsistency  of  them  Avith 
admitted  or  incontrovertible  facts.  All  such  false,  incredible, 
or  contradictory  statements,  if  disproA^ed  or  disbelieved,  are  not 

1  Rex  V.  Dawtrey,  York  Spr.  Ass.  1841. 

2  Dean  v.  Com.,  33  Grat.  912.  s  Newman  v.  State,  26  Ga.  637. 

*  Orr  V.  State,  34  Ga.  343.  5  Gordon  v.  People,  33  N.  Y.  501. 

6  Rex  V.  Isaacs,  3  Russell  (9th  Amer.  Ed.),  316. 


AND  ATTEMPTS  TO  ACCOUNT  FOR  THEM.  109 

simply  neutralized,  but  become  of  a  substantive  inculpatory 
effect.  Mendacity  is  a  circumstance  against  the  person  who 
resorts  to  it.^  The  fabrication  of  false  and  contradictory  ac- 
counts by  an  accused  criminal  for  the  sake  of  diverting  inquiry 
or  casting  off  suspicion,  is  a  cu'cumstance  always  indicatory 
of  guilt. 2  An  explanation  for  the  execution  of  a  conveyance 
which  is  false,  may  itself  authorize  the  conclusion  that  the  con- 
veyance is  fraudulent.^  And  where  the  prisoner,  accused  of 
theft,  had,  on  a  day  subsequent  to  the  stealing,  an  unusual 
quantity  of  money  which  he  accounted  for  in  a  false  way,  a 
verdict  of  guUty  was  held  to  be  justified.*  On  a  trial  for  mur- 
der by  droi^Tiing,  the  prisoner  had  five  marks  on  his  hand 
which  were  supposed  to  have  been  made  by  the  finger-nails  of 
the  deceased  in  the  death-struggle,  and  the  prisoner's  contradic- 
tory statements  as  to  the  cause  of  these  scratches  were  ad- 
mitted as  a  circumstance  against  htm.^  On  the  trial  of  a  husband 
for  the  murder  of  his  wife  by  poison,  it  was  shown  that  false 
and  contradictory  accounts  had  been  given  by  the  prisoner, 
both  as  to  the  pmx-hase  of  the  poison,  and  his  whereabouts  imme- 
diately thereafter.^  And  on  the  trial  of  another  cause  of  the 
same  nature  it  appeared  the  accused  had  made  contradictory 
statements  as  to  the  use  for  which  the  poison  was  intended. 
And  it  was  shown  that  the  defendant  had  told  the  servant  whom 
he  had  sent  after  the  strychnine,  to  say,  if  any  one  asked  what 
had  become  of  the  powder,  that  it  had  been  stolen  out  of  his 
coat-pocket  while  his  coat  was  hanging  in  a  restaurant.'' 

On  the  trial  of  an  indictment  for  murder,  the  State  introduced 
as  a  witness  one  Dodge,  who  testified  that  he  Avent  to  the  jail 
where  the  defendant  was  confined,  with  a  certain  gun  and  pawn- 
ticket, and  asked  the  defendant  in  the  presence  of  one  Shuman 
if  he  knew  the  gun,  and  if  he  had  signed  the  ticket,  and  that 
the  defendant  denied  all  knowledge  of  the  gun  and  also  denied 
signing  the  ticket.  The  witness  testified  that  he  then  asked 
Shuman  in  the  defendant's  presence  if  the  defendant   signed 

1  Lovett  V.  state,  60  Ga.  257. 

2  Cathcart  v.  Com.,  37  Pa.  St.  108.     And  see  State  v.  Holden,  42  Minn. 
350  ;  McDonald  v.  State,  22  S.  W.  403. 

3  Little  V.  Ragan,  83  Ky.  321. 

*  Thomas  v.  State,  13  Tex.  dim.  App.  493. 
6  Cheverins  v.  Com.,  8  Crim.  L.  Mag.  7C0. 
«  McMeen  v.  Com.,  114  Pa.  St.  300. 
'  Roe  V.  State,  25  Tex.  App.  33. 


110  UNEXPLAINED  APPEARANCES  OF  SUSPICION, 

the  ticket,  and  Shuman  replied  that  he  did,  and  that  the  de- 
fendant then  said  that  he  did  not  sign  it,  and  also  said  again 
that  he  had  never  seen  the  gun  or  the  ticket.  The  gun  was  iden- 
tified by  three  witnesses  as  having  been  the  property  of  the 
deceased  at  the  time  of  the  homicide.  Shuman  testified  that 
he  was  a  pawnbroker,  and  that  on  a  date  five  days  after  the 
homicide,  but  before  the  discovery  of  the  crime,  the  defendant 
brought  the  gun  to  the  place  of  business  of  the  witness  and 
pawned  it  to  him,  signing  two  pawn-tickets  ;  one  of  which  was 
retained  by  the  witness,  the  other  being  given  to  the  defendant. 
Other  evidence  showed  that  the  pawn-ticket  which  Shuman 
identified  as  the  one  he  gave  the  defendant  was  found  con- 
cealed at  a  place  where  the  defendant  had  been  seen  to  go. 
The  Supreme  Court  held  that  the  defendant's  denial  of  ever 
having  seen  the  gun  or  signed  the  ticket  was  a  circumstance 
proper  for  the  jury  to  consider  with  other  circumstances  in  de- 
termining his  guilt.^ 

In  a  trial  for  malicious  shooting,  it  appeared  that  the  prose- 
cuting witness  had  returned  the  fire  with  a  shot-gun.  It  was 
clearly  proper  to  admit  evidence  in  rebuttal  that  the  accused 
had  attempted  to  account  for  gunshot  wounds  upon  his  person 
in  a  manner  contradictory  to  his  testimony  on  the  trial.^ 

But  even  in  such  circumstances,  however,  guilt  cannot  be 
safely  inferred,  unless  there  has  been  laid  such  a  substratum 
of  evidence,  direct  or  circumstantial,  as  creates  a  strong  inde- 
pendent prima  facie  case  against  the  prisoner.^  On  a  trial  for 
the  murder  of  a  female  by  poison,  whom  the  prisoner  alleged 
to  have  died  from  the  effects  of  a  draught  taken  by  her  in 
anger  during  an  altercation  between  them,  Mr.  Baron  Parke 
told  the  jury  that  it  was  for  them  to  say  whether  the  falsehoods 
the  prisoner  had  told  did  not  show  that  he  was  conscious  that 
he  had  been  guilty  of  some  act  that  required  concealment ; 
that  it  was  very  true  he  might  not  wish  it  to  be  known  he  had 
been  visiting  a  woman  who,  there  was  good  reason  to  believe, 
had  formerly  been  his  mistress  ;  but  that,  if  he  was  an  innocent 
man,  and  had  been  present  at  the  death,  one  would  have  sup- 
posed he  would  have  disclosed  it  immediately  and  called  in 

1  McDonel  v.  State,  18  Cent.  L.  J.  374. 

2  Logan  V.  Com.,  16  Ky.  L.  Rep.  508  ;   29  S.  W.  633. 

8  Per  Mr.  Justice  Littledale,  in  Rex  v.  Clark,  Warwick  Summer  Ass., 
1831. 


AND  ATTEMPTS  TO  ACCOUNT  FOR  THEM.  m 

some  assistance.  They  had  here  two  untruths  :  that  he  meant 
to  dine  at  the  west  end  of  the  town  and  did  not,  and  his  denial 
that  he  had  been  out  of  London  that  evening ;  these,  he  said, 
were  very  material  matters  for  their  inquiry,  bearing  in  mind 
that  upon  the  e\idence  there  was  a  very  ample  case  for  grave 
consideration,  to  show  that  the  deceased  died  of  prussic  acid, 
and  that  the  prisoner  was  present  in  the  house  at  the  moment  of 
that  death.  His  lordship  added,  that  if  the  prisoner's  representa- 
tion had  been  true,  that  the  deceased  had  poisoned  herself,  one 
would  have  supposed  that  he  would  have  taken  the  first  oppor- 
tunity, having  been  present  at  the  time  this  occurred,  of  exon- 
erating himself  from  it,  by  making  this  declaration  to  the  first 
person  he  met ;  one  would  expect  if  he  had  been  a  man  of  the 
least  cordial  feeling,  he  would  have  waited  to  see  whether  it 
was  true  or  not  that  she  had  taken  this  poison,  and  called  for 
assistance,  instead  of  which,  he  is  proved  to  have  gone  in  a 
short  time  to  London,  and  when  he  got  to  London  he  is  proved 
to  have  denied  altogether  that  he  had  been  there.  You  must 
judge,  said  the  learned  Baron,  of  the  truth  of  the  case  against 
a  person  by  all  his  conduct  taken  together.^ 

Allowance  must  nevertheless  be  made  for  the  weakness  of 
human  nature  and  for  the  difficulties  whi^h  may  attend  the 
proof  of  circumstances  of  exculpation  ;-  and  care  must  be  taken 
that  circumstances  are  not  erroneously  assumed  to  be  suspicious 
without  sufficient  reason.^ 

^  Reg.  V.  Lawell,  Aylesbury  Spr.  Ass.  1845. 

2  Rex  V.  Gill,  ut  supra,  63,  and  3  Hale's  P.  C.  ch.  39. 

*  Rex  V.  Looker,  and  Rex  v.  Thornton,  infra. 


CHAPTER  VI. 

CONFESSIONAL  EVIDENCE. 


Section  I. 
General  Consideration  of  the  Rules  Relating  to  Confessions. 

A  CONFESSION  of  guilt  partakes  rather  of  the  nature  of  posi- 
tive than  of  circumstantial  evidence.^  But  though  the  subject 
of  direct  confession  does  not  fall  within  the  province  of  this 
volume,  it  is  necessary  to  advert  to  some  of  the  principal  rules 
which  relate  to  that  important  head  of  moral  evidence,  because 
they  are  of  great  moment  in  their  application  to  such  particu- 
lars of  circumstantial  evidence  as  are  only  indirectly  in  the 
nature  of  confessional  evidence. 

Confessions  are  judicial  or  extrajudicial.  Judicial  confes- 
sions, says  Prof.  Greenleaf,  are  those  which  are  made  before  the 
magistrate,  or  in  court  in  the  due  course  of  legal  proceedings. 
Extrajudicial  confessions  are  those  which  are  made  by  the  party 
elsewhere  than  before  a  magistrate,  or  in  court ;  this  term  em- 
bracing not  only  explicit  and  express  confessions  of  crime,  but 
all  those  admissions  of  the  accused  from  which  guilt  can  be 
implied.^ 

1  Langdon  v.  People,  133  111.  383 ;  Eckert  v.  State,  9  Tex.  Grim.  App. 
105  ;  White  v.  State,  33  Tex.  Grim.  App.  635. 

But  confessional  evidence  may  be  circumstantial,  as,  for  instance,  if  it 
be  of  a  fact  which  is  itself  but  a  circumstance.  Eberhardt  v.  State,  47 
Ga.  598. 

2  1  Greenl.  on  Ev.  §  316.     And  see  U.  S.  v.  Williams,  1  Gliflf.  5. 
Statements  of  the  defendant  which  do  not  amount  to  an  actual  confession 

of  guilt,  but  are  admissions  of  isolated  facts  from  which  guilt  can  be  in- 
ferred, are  relevant  and  admissible,  Ettinger  v.  Gom.,  98  Pa.  St.  338 ; 
Luby  V.  Com.,  13  Bush  (Ky.),  1, 

Where  testimony  was  to  the  effect  that  on  the  day  the  assaulted  party, 
while  riding  a  horse,  was  injured,  the  defendant  had  declared  that  he  had 
112 


CONFESSIONAL  EVIDENCE.  113 

Many  of  the  earlier  cases  in  England  went  to  an  extreme  in 
rejecting  confessions,  and  too  frequently  sacrificed  justice  and 
common  sense  at  the  shrine  of  mercy.^  Confessions,  unless  the 
circumstances  under  which  they  are  made  show  them  not  to 
have  been  voluntary,  are  admissible,^  and  are  among  the  most 
effectual  proofs  of  guilt  .^  In  order  that  confessions  may  be 
admitted  in  evidence,  it  must  appear  that  they  were  voluntary.* 
Confessions  or  disclosm'es  extracted  by  any  threat,  or  obtained 
by  the  influence  of  any  promis'^,  or  encouragement  of  any  hope 
or  favor,  are  inadmissible  In  criminal  prosecutions.^  The  con- 
fession, which  is  inadmissible  on  the  ground  of  not  having  been 
voluntarily  made,  must  have  been  induced  by  some  fear  of  per- 
sonal injury,  or  hope  of  personal  benefit  of  a  temporal,  nature, 
unless  the  collateral  inducement  be  so  strong  as  to  make  it 
reasonable  to  believe  that  it  might  have  produced  an  untrue 
statement  as  a  confession.^  But  however  slightly  the  emotion 
of  hope  or  fear  may  be  implied,  the  confession  thus  obtained  is 
inadmissible.'  If,  however,  the  confession  is  not  so  connected 
with  any  threat  or  promise  as  to  be  a  consequence  of  it,  it  is  to 
be  regarded  as  voluntary,  and,  of  course,  admissible.^ 

"  shot  at  the  man  that  rode  his  horse,"  it  was  held  that  this  was  not  tanta- 
mount to  an  admission  by  the  accused  that  he  liad  committed  the  deed  for 
which  he  was  on  trial,  and  that  it  was  only  by  a  process  of  inference  that 
the  jury  could  so  conclude.     Eckert  v.  State,  9  Tex.  Crim.  App.  105. 

1  Baron  Parke,  in  Reg.  v.  Baldry,  12  Eng.  L.  &  Eq.  590. 

2  Miller  v.  State,  25  Wis.  384  ;  Basyer.  State  (Neb.),  68  N.  W.  811  ;  Eber- 
hardt  v.  State,  47  Ga.  598.  And  the  fact  that  the  defendant  was  intoxi- 
cated, "  that  he  was  excited  and  scattering  in  his  conversation,  and  that 
no  one  who  heard  him  could  repeat  all  that  he  said,"  does  not  render  his 
declarations  or  confessions  of  guilt  inadmissible.  Eskridge  v.  State,  25 
Ala.  30.  And  see  Whitney  v.  State,  8  Mo.  165  ;  Ballard  v.  State,  19  Neb. 
609. 

3  U.  S.  V.  Montgomery,  3  Sawy.  552.  *  Owen  v.  State,  78  Ala.  425. 

5  Byrd  v.  State,  68  Ga.  661  ;  Ward  v.  People,  3  Hill,  395  ;  Stater.  Grant, 
9  Shep.  171  ;  State  v.  Freeman,  1  Speers,  57  ;  People  v.  Barrie,  49  Cal.  342  ; 
State  V.  Phelps,  11  Vt.  116  ;  Boyd  v.  State,  2  Humpli.  37  ;  State  v.  Harman, 
3  Harr.  567  ;  Redd  v.  State,  69  Ala.  255  ;  Flagg  v.  People,  40  Mich.  706. 

6  Cora.  V.  Mitchell,  117  Mass.  431  ;  Grant  v.  State,  55  Ala.  201  ;  State  v. 
Alphonse,  34  La.  Ann.  9  ;  Willett  v.  People.  27  Hun,  469  ;  People  v.  Mc- 
Gloin,  91  N.  Y.  241  ;  People  v.  Rankin,  2  Wheel.  Cr.  Cas.  467  ;  State  v. 
Grout,  22  Me.  171. 

■^  State  V,  Grant,  supra ;  State  v.  Phelps,  supra  ;  Com.  v.  Knapp,  9  Pick. 
496  ;  Stephen  v.  State,  11  Ga.  225. 

8  State  V.  Fortner,  43   la.  494  ;  State  v.  Potter,  18  Conn.  166.     And  see 
Porter  v.  State,  55  Ala.  95  ;  Ward  v.  State,  50  Ala.  120. 
8 


114  CONFESSIONAL  EVIDENCE. 

The  fact  that  a  confession  was  made  by  one  who  was 
shackled  and  in  custody  and  when  he  had  no  counsel,  is  not 
sufficient  to  make  it  inadmissible.^ 

A  confession  is  competent  evidence,  although  threats  and 
promises  have  been  made,  where  it  satisfactorily  appears  that 
it  was  not  induced  thereby .^ 

And  if  a  jury  is  instructed  that  confessions  or  admissions 
must  be  made  voluntarily,  and  that  if  the  jury  find  they  were 
made  by  the  accused  under  undue  influence,  they  cannot  be 
considered,  this  is  all  the  accused  can  ask.^ 

It  is  no  reason  for  the  exclusion  of  a  confession  of  one 
charged  with  arson  that  it  was  obtained  by  the  artifice  and 
deception  of  the  person  to  whom  it  was  made  in  pretending 
that  he  was  in  sympathy  with  barn-burning  and  wanted  to 
have  some  burning  done  on  his  own  account.  In  this  case  the 
confession  admitted  in  evidence  was  made  in  the  hearing  of 
officers  who  were  concealed  near  by  but  without  the  knowl- 
edge of  the  accused,  and  before  his  arrest.*  Confessions  made 
on  the  next  day  after  defendant's  arrest  are  not  rendered  in- 
competent by  the  mere  fact  that  they  were  made  to  the  same 
officer  who  made  the  arrest,  and  that  such  officer  at  the  time  of 
the  arrest  had  held  out  certain  inducements  to  the  defendant, 
where  it  seems  clear  that  such  confessions  were  voluntary  and 
not  made  in  reliance  upon  such  inducements.^  And  the  fact 
that  one,  on  being  arrested,  was  told  by  the  officer  at  the  time 
of  the  arrest  that  giving  himself  up  was  the  best  course  that 
he  could  pursue,  does  not  render  inadmissible  confessions  then 
made  to  the  officer,  it  not  appearing  that  anything  further 
was  said  or  done  by  the  officer  prior  to  the  confessions.^  It 
appearing  that  a  confession  was  freely  and  voluntarily  made, 
it  was  held  immaterial  that  firearms  were  at  the  time  deposited 
in  the  room,  where  they  were  not  exhibited  to  defendant,  and 
were  not  procured  for  the  purpose  of  intimidating  him.^ 

The  burden  of  proving  that  a  confession  was  voluntary  lies 

1  Sparf  V.  U.  S,,  156  U.  S.  51 ;  State  v.  Gorham  (Vt.),  31  Atl.  845  ;  Com. 
V.  Sheehan,  163  Mass.  170. 

2  Bartley  v.  People,  156  111.  234. 

3  People  V.  Warner  (Mich.),  62  N.  W.  405. 

*  Stone  V.  State  (Ala.),  17  So.  114.  &  Com.  v.  Myers,  160  Mass.  530. 

6  Willis  V.  State,  93  Ga.  208. 
"!  State  V.  Watt,  47  La.  Ann.  — . 


CONFESSIONAL  EVIDENCE.  115 

upon  the  prosecution ;  ^  and  it  belongs  to  the  judicial  province 
to  deternune  as  a  preliminary  question  whether  a  confession 
was  made  with  the  degree  of  freedom  which  ought  to  occasion 
its  admission  as  evidence.^ 

Any  sufficient  testimony  to  rebut  the  presumption  that  a 
confession  was  prompted  by  any  degree  of  influence  will  justify 
the  court  in  admitting  the  testimony.  In  one  case  it  Avas 
said  to  be  a  significant  fact  tending  to  show  that  the  confession 
was  voluntarily  made,  that  prior  to  the  confession  the  defend- 
ant had  not  been  arrested,  or  even  publicly  accused  of  the 
crime,  and  that  he,  of  his  own  accord,  sought  the  opportunity 
to  talk  with  witnesses  about  the  loss  of  the  money,  and  mani- 
fested no  disposition  then,  or  afterwards,  to  deny  his  guilt.^ 

A  voluntary  confession  of  guilt,  if  it  be  full,  consistent,  and 
probable,  is  justly  regarded  as  evidence  of  the  highest  and  most 
satisfactory  nature.*  The  ground  of  admissibility  is  said  to  be 
that  self-love,  the  mainspring  of  human  conduct,  will  usually 
prevent  a  rational  being  from  making  admissions  prejudicial  to 
his  interest  and  safety,  unless  when  caused  by  the  promptings 
of  truth  and  conscience.^  This  reasoning  will  have  great  or 
little  weight,  according  to  the  circumstances  of  the  particular 
case. 

This  evidence  ought  to  be  received  Avith  the  greatest  caution, 
and  after  the  possibility  of  any  inducement  has  been  remoA^ed.^ 

1  Reg.  V.  AVarringham,  2  Den.  C.  C.  447,  n.  ;  3  Russ.  on  Crimes  (9th  Am. 
Ed.),  431. 

2  Heaton  v.  State,  2  Mo.  166  ;  State  v.  Patterson,  73  Mo.  695  ;  Brister  v. 
State,  26  Ala.  107  ;  State  v.  Gorham  (Vt.),  31  Atl.  845. 

8  Bartley  v.  People,  156  III.  234. 

*  3  Mascardus,  ^lt  supra,  Concl.  xv,  xvi ;  Rex  v.  Warrickshall,  1  Leach's 
C.  C.  299  ;  1  Greenl.  Ev.  §  219  ;  State  v.  Brown,  48  la.  382. 

6  State  V.  Matthews,  66  N.  C.  106. 

6  State  V.  Matthews,  supra ;  Brown  v.  State,  32  Miss.  433  ;  Terr.  v.  McClin, 
1  Mont.  394.  It  has  been  held,  that  to  exclude  a  confession  on  the  ground 
of  inducement,  it  must  be  shown  that  the  inducement  liad  reference  to 
the  punishment  of  the  crime  charged.  State  v.  Tatro,  50  Vt.  483.  When 
a  confession  is  obtained  by  a  promise  to  put  an  end  to  a  prosecution,  it  is 
lield  that  such  confession  is  inadmissible.  Boyd  v.  State,  2  Humph.  39. 
A  confession  obtained  by  a  promise  "not  to  prosecute  lieavy"  is  inad- 
missible. Rector  v.  Com.,  80  Ky.  468.  An  assurance  to  a  girl  fourteen 
years  old  that  she  shall  not  be  hurt,  is  such  an  inducement  as  renders  the 
confession  insufficient  for  conviction,  and  it  is  error  for  the  court  to  refuse 
so  to  charge  when  requested.  Earp  v.  State,  55  Ga.  136.  But  after  a  cau- 
tion to  the  defendant  not  to  tell  on  himself,  a  confession  is  voluntary.     State 


116  CONFESSIONAL  EVIDENCE. 

But  a  voluntary  and  unsuspected  confession  is  clearly  sufficient 
to  warrant  conviction,  wherever  there  is  independent  proof  of 
the  corjms  delicti} 

It  has  been  sometimes  asserted  that  a  confession  alone,  un- 
corroborated in  any  way  whatever,  is  a  sufficient  ground  for 
conviction.^    But  in  all  of  the  cases  adduced  in  support  of  this 

V.  Rigsby,  6  Lea  (Tenn.),  554  ;  Matthews  v.  State,  9  Lea  (Tenn.),  128  ;  Com. 
r>.  Sego,  125  Mass.  210.  And  urging  the  ijrisoner  to  confess  if  guilty,  but 
not  to  confess  if  innocent,  will  not  render  the  disclosure  inadmissible. 
Jleniaka  v.  State,  55  Ala.  47.  Where  the  constable  had  said  to  the  prisoner, 
after  telling  him  the  charge,  "  that  he  must  not  say  anything  to  criminate 
himself,  that  what  he  did  say  would  be  taken  down,  and  used  as  evidence 
against  him,"  Lord  Campbell,  C.  J.,  at  the  trial,  received  the  evidence, 
but  reserved  the  jx)int  for  the  consideration  of  the  Court  of  Criminal  Appeal. 
All  the  judges  were  of  the  opinion  that  the  statement  was  admissible. 
Pollock,  C.  B.,  said  :  "A  simple  caution  to  the  accused  to  tell  the  truth, 
if  lie  says  anything,  has  been  decided  not  to  be  sufficient  to  prevent  the 
statement  being  given  in  evidence  ;  yet  even  in  that  case  the  person  charged 
might  have  understood  tlie  caution  as  meaning  that  he  could  not  tell  the 
truth  without  confessing  his  guilt.  It  has  been  decided  that  that  would 
not  prevent  the  statement  being  given  in  evidence,  hj  Littledale,  J, ,  in 
R.  V.  Court,  7  C.  &  P.  (32  E.  C,  L.)  486  ;  and  by  Rolfe,  B.,  in  a  case  at 
Gloucester,  R.  v.  Holmes,  1  Car.  &  K.  (47  E.  C.  L.)  248  ;  but  where  tlie  ad- 
monition to  speak  the  truth  has  been  coupled  with  any  expression  import- 
ing that  it  would  be  better  for  him  to  do  so,  it  has  been  held  that  the  con- 
fession is  not  I'eceivable  ;  the  objectionable  words  being,  'that  it  would  be 
better  to  speak  the  truth,'  because  they  import  that  it  would  be  better  for 
him  to  say  something.  This  was  decided  in  R.  v.  Garner,  1  Den.  C.  C.  329  ; 
2  C.  &  K.  920  (61  E.  C.  L.).  The  true  distinction  between  the  present  case 
and  a  case  of  that  kind  is,  that  here  it  is  left  to  the  prisoner  as  a  perfect 
matter  of  indifference  wliether  he  should  open  his  mouth  or  not."  R.  v. 
Baldry,  2  Den.  C.  C.  430 ;  21  L.  J.  M.  C.  130.  With  regard  to  the  nature  of 
inducements  and  confessions  made  in  consideration  thereof,  see  further, 
R.  V.  Jarvis,  L.  R.  1  C.  C.  R.  96  ;  37  L.  J.  M.  C.  3 ;  R.  v.  Sleeman,  1  Dear. 
G.  C.  249 ;  R.  v.  Upchurch,  1  Moo.  C.  C.  465  ;  R.  v.  Hearn,  1  Car.  &  M.  109  ; 
R.  V.  Reeve,  L.  R.  1  C.  C.  R.  363  ;  R.  v.  Fennell,  7  Q.  B.  D.  147  ;  50  L.  J.  M. 
C.  126  ;  Reg.  v.  Mansfield,  14  Cox  C.  C.  639  ;  Smith  v.  Com.,  10  Grat.  734  ; 
Jim  V.  State,  15  Ga.  535 ;  Wyatt  v.  State,  25  Ala.  9 ;  Austin  v.  State,  14 
Ark.  556 ;  People  v.  Burns,  2  Park.  C.  R.  34 ;  Fife  v.  Com.,  30  Pa.  St.  429  ; 
Rape  V.  State,  20  Ga.  60  ;  People  v.  Smith,  15  Cal.  408  ;  Dick  v.  State,  30 
Miss.  593  ;  Price  v.  State,  8  Ohio  St.  418  ;  Cady  v.  State,  44  Miss.  332  ;  State 
V.  Longborne,  66  N.  C.  538 ;  O'Brien  v.  People,  48  Barb.  274 ;  Vaughn  v. 
Com.,  17  Gray,  576  ;  Miller  v.  State,  40  Ala.  64  ;  Joe  v.  State,  38  Ala.  422  ; 
States.  Walker,  34  Vt.  296;  Thompson  v.  Com.,  20  Grat.  724;  Austin  v. 
State,  51  111.  236  ;  State  v.  Brockman,  46  Mo.  566  ;  State  v.  Squires,  48  N. 
H.  364  ;  Miller  v.  State  (Ga.),  21  S.  E.  128  ;  Hardy  v.  U.  S.  (D.  C.  App.),  23 
Wash.  L.  Rep.  826. 

1  Mose  V.  State,  36  Ala.  211. 

2  People  V.  McFall,  1  Wheel.  Cr.  Cas.  107. 


CONFESSIONAL  EVIDENCE.  n^ 

position  there  seems  to  have  been  some  evidence,  though  slight, 
of  confirmatory  circumstances,  independently  of  the  conf  ession.i 
It  does  not,  therefore,  appear,  says  Mr.  Greaves,^  that  it  has 
ever  been  expressly  decided  that  the  mere  confession  of  a  pris- 
oner alone,  and  without  any  other  evidence,  is  sufficient  to 
warrant  a  conviction.  And  it  is  clearl}'^  the  law  of  the. present 
day  that  extra-judicial  confessions,  uncorroborated  by  circum- 
stiinces,  and  without  proof  aliunde  that  a  crime  has  been  com- 
mitted, will  not  justify  a  conviction.^  The  rule  has  been  thus 
declared  by  statute  in  some  states.^  And  this  is  most  in  accord- 
a-nce  with  the  general  principles  of  reason  and  justice,  and  the 
practice  of  other  enlightened  nations.^  And  the  proof  that 
is  necessary  to  sustain  a  confession  is  only  proof  of  an  objective 
crime,  not  that  it  has  been  committed  by  the  defendant.^  A 
confession  made  by  one  accused  of  crime  may  be  corroborated 
by  clear  and  undoubted  evidence  of  the  corpus  delicti."^ 

But  full  proof  of  the  body  of  the  crime  is  not  required.  All 
that  can  be  required  is  that  there  be  such  extrinsic  -  corrobora- 
tive circumstances,  as  will,  taken  in  connection  with  the  con- 
fession, produce  conviction  of  the  defendant's  guilt  in  the  mind 
of  the  jury.  Very  slight  corroborating  circumstances  have 
been  held  sufficient.^     Proof  that  the  crime  has  been  committed 

1  Rex  V.  Fisher,  1  Leach,  286  ;  Rex  v.  Eldridge,  R.  &  R.  441  ;  Rex  v. 
Faulkner,  Id.  481  ;  Rex  v.  White,  Id.  508 ;  Rex  v.  Tippett,  Id.  509  ;  1  Green, 
leaf's  L.  of  Ev.  §  217. 

2  In  a  note  to  3  Riiss.  on  Crimes  (9th  Am.,  from  4th  Lond.  Ed.),  367. 

3  People  V.  Jones,  31  Cal.  565  ;  People  v.  Thrall,  50  Cal.  415  ;  State  v. 
Long,  1  Hayw.  455  ;  Terr.  v.  McClin,  1  Mont.  394 ;  Robinson  v.  State,  12 
Mo.  592  ;  People  v.  Hennesey,  15  Wend.  147  ;  Pitts  v.  State,  43  Miss.  472  ; 
Tyner  v.  State,  5  Humph.  383  ;  Keithler  v.  State,  10  Sm.  &  M.  192  ;  Matthews 
V.  State,  55  Ala.  187  ;  Hill  v.  State,  11  Tex.  Crim.  App.  132  ;  Kennon  v. 
State,  Id.  356  ;  Williams  v.  People,  101  111.  382 ;  Johnson  v.  State,  59  Ala. 
37  ;  State  v.  Knowles,  48  la.  598  ;  People  v.  Lane,  49  Mich.  340 ;  String- 
fellow  V.  State,  26  Miss.  157. 

*  Ky.  Cr.  Code,  §  240.  See  Greenwade  v.  Com.,  12  S.  W.  131.  But  in 
New  York  a  confession  is  evidence  of  the  ccn'pus  delicti.  People  v.  Jachne, 
4  N.  Y.  Crim.  Rep.  478. 

s  Best  on  Pres.  330,  and  the  cases  cited  ;  1  Greenleafs  Ev.  §  217  ;  Alison's 
Princ.  325  ;  Code  Penal  d'Autriche,  partie  1,  §  2,  ch.  x. 

6  State  V.  Grear,  29  Minn.  221  ;  Gray  v.  Com.,  101  Pa.  St.  380. 

'  Sehaefer  v.  State  (Ga.),  18  S.  E.  552. 

8  Robinson  v.  State,  12  Mo.  592  ;  State  v.  German,  54  Mo.  526  ;  State  v. 
Patterson,  73  Mo.  695  ;  People  v.  Hennesey,  15  Wend.  147  ;  People  v.  Badg- 
ley,  16  Wend.  53  ;  U.  S.  v.  Williams,  1  Cliff.  15  ;  Willard  v.  State,  27  Tex. 
Crim.  App.  386. 


118  CONFESSIONAL  EVIDENCE. 

by  some  one  is  necessarily  corroborative  of  a  confession  by  the 
defendant  that  he  committed  the  crime.^  A  great  variety  of 
facts  usually  attends,  or  is  incidentally  connected  with,  the 
commission  of  every  crime.  Proof  of  any  number  of  these 
facts  and  circumstances,  consistent  v^^ith  the  truth  of  the  con- 
fessions or  which  the  confession  has  led  to  the  discovery  of,  and 
which  would  not  probably  have  existed  had  the  crime  not  been 
committed,  necessarily  corroborate  it,  and  increase  the  prob- 
ability of  its  truth.2  'j'jjQ  corroboration  is  sufficient  even  if  the 
corroborating  circumstances  are  capable  of  innocent  construc- 
tion, and  the  confession  alone  furnishes  the  key.*  An  inde- 
pendent fact  having  evidentiary  significance  of  its  own,  though 
discovered  in  consequence  of  a  constrained  confession  of  the 
prisoner,  is  admissible  in  evidence  unless  the  confession  was 
obtained  by  the  use  of  criminal  violence.  And  in  such  a  case 
the  acts  and  declarations  of  the  accused,  so  far  as  they  explain, 
and  are  necessary  to  account  for  the  discovery  of  such  fact,  are 
admissible  also,  but  as  being  part  of  the  res  gestcB,  and  not  as  a 
confession.*  A  prisoner  having  confessed  to  shooting  the  de- 
ceased with  buckshot  of  a  certain  kind,  it  may  be  proved,  as 
corroborating  his  confession  that  buckshot  of  that  kind  were 
found  in  a  tree  at  the  scene  of  the  murder.^  And  a  conviction 
was  held  proper,  where  the  confession  of  the  prisoner,  accused 
of  burglary,  was  corroborated  by  evidence  of  his  attempt  to 
escape  when  found  in  possession  of  the  stolen  goods.^ 

It  is  said  by  Mr.  Justice  Foster  "^  that  hasty  confessions  made 
to  persons  having  no  authority  to  examine  are  the  weakest  and 
most  suspicious  of  all  evidence.  Proof  may  be  too  easily  ])ro- 
cured,  words  are  often  misreported,^  through  ignorance,  inat- 

1  Mullins  V,  Com.  (Ky.),  20  S.  W.  1035. 

2  Bergen  v.  People,  17  lU.  426. 

3  People  V.  Jachne,  4  N.  Y.  Crlm.  Rep.  478. 

*  Rusher  v.  State,  94  Ga.  363.  6  Mose  v.  State,  36  Ala.  211. 
«  State  V.  Moore,  22  S.  W.  1086.  '  Discourses,  243. 

*  The  language  of  the  witness  may  be  substituted  for  that  of  the  accused. 
Law  V.  Merrill,  6  Wend.  268  ;  State  v.  Gardiner,  Wr.  Rep.  293.  "  It  very 
frequently  happens,  not  only  that  the  witness  has  misunderstood  what  the 
party  has  said,  but  that,  by  unintentionally  altering  a  few  of  the  expres- 
sions really  used,  he  gives  an  effect  to  the  statement  completely  at  variance 
with  what  the  party  really  did  say."  Mr.  Baron  Parke,  in  Earle  v.  Picken, 
5  C.  &  P.  542,  n.  So  where  one  of  two  Avitnesses,  called  to  prove  the  same 
statement  of  the  prisoner  to  his  wife,  said  that  the  words  were,  "  Keep  your- 
self to  yourself  and  don't  marry  again,"  and  the  other,  "Keep  yourself  to 
yourself  and  keep  your  own  counsel."    Rex  v.  Simons,  6  C.  &  P.  540. 


CONFESSIONAL  EVIDENCE.  ng 

tention,  or  malice,  and  they  are  extremely  liable  to  miscon- 
struction.i  Confessions,  then,  as  has  been  said,  ought  alwa3^s 
to  be  received  with  great  caution.  Judicial  history  presents 
innumerable  warnings  of  the  danger  of  placing  implicit  depend- 
ence upon  this  kind  of  self -condemnatory  evidence,  even  where 
it  is  exempt  from  all  suspicion  of  coercion,  physical  or  moral, 
or  other  sinister  influence.'*  How  greatly,  then,  must  such  dan- 
ger be  aggravated,  where  confession  constitutes  the  only  evi- 
dence of  the  fact  of  a  corpus  delicti  y  and  how  incalculably 
greater  in  such  cases  is  the  necessity  for  the  most  rigorous 
scrutiny  of  all  collateral  circumstances  which  may  actuate  the 
party  to  make  a  false  confession !  The  agonies  of  torture,  the 
dread  of  their  infliction,  the  hope  of  escaping  the  rigors  of 
slavery  or  the  hardships  of  military  service,  a  weariness  of 
existence,  self-delusion,  the  desire  to  shield  a  guilty  relative  or 
friend  from  the  penalties  of  justice,^  the  impulses  of  despair 
from  the  pressure  of  strong  and  apparently  incontrovertible 
presumptions  of  guilt,  the  dread  of  unmerited  punishment  and 
disgrace,  the  hope  of  pardon,* — these  and  numerous  other  induce- 
ments have  not  unfrcquently  operated  to  produce  unfounded 
confessions  of  guilt. 

Innumerable  are  the  instances  on  record  of  confession,  ex- 
tracted "  by  the  deceitful  and  dangerous  experiment  of  the 
criminal  question,"  ^  of  offences  which  were  never  committed, 
or  not  committed  by  the  persons  making  confession.^  Nor 
have  such  instances  been  w^anting  in  other  parts  of  Europe 
even  in  the  present  century. 

"When  Felton,  upon  his  examination  at  the  Council  Board, 
declared,  as  he  had  always  done,  that  no  man  living  had  insti- 
gated him  to  the  murder  of  the  Duke  of  Buckingham,  the 
Bishop  of  London  said  to  him,  "  If  j^ou  will  not  confess,  you 
must  go  to  the  rack."  The  man  replied,  "  If  it  must  be 
so,  I  know  not  whom  I  may  accuse  in  the  extremity  of  the 

1  Roscoe,  Crim.  Ev.  (8th  Am.  Ed.)  67.  Where  a  witness  has  testified  to  a 
confession  the  defendant  may  show  that  it  was  uttered  in  jest.  Ray  v. 
State,  80  Ala.  104. 

2  U.  S.  V.  Nott,  1  McL.  499.  3  1  Chitty's  Crim  L.  85. 

*  Brister  v.  State,  26  Ala.  107 ;  and  remarks  of  Chief  Justice  Eyre  in 
Warrickshall's  Case,  supra. 

^  3  Gibbon's  Decline  and  Fall,  ch.  xvii. 

^  Jardine  on  the  Use  of  Torture  in  the  C.  L.  of  England,  3,  6.  And  see 
Fortescue,  De  Laudibus  Legum  Angliae,  ch.  33. ' 


120  CONEESSIONAL  EVIDENCE. 

torture;  Bishop  Laud,  perhaps,  or  any  lord  at  this  Board."  ^ 
"  Sound  sense,"  observed  the  excellent  Sir  Michael  Foster,  "in 
the  mouth  of  an  enthusiast  and  a  ruffian."  ^ 

Not  less  repugnant  to  policy,  justice,  and  humanity,  is  the 
moral  torture  to  which  in  some  (perhaps  in  most)  of  the  nations 
of  Europe,  persons  suspected  of  crime  are  subjected,  by  means 
of  searching,  rigorous,  and  insidious  examinations,  conducted 
by  skilful  adepts  in  judicial  tactics,  and  accompanied  some- 
times even  by  dramatic  circumstances  of  terror  and  intimida- 
tion.* 

Lord  Clarendon  gives  a  circumstantial  account  of  the  con- 
fession of  a  Frenchman  named  Hubert,  after  the  fire  of  Lon- 
don, that  he  had  set  the  first  house  on  fire,  and  had  been  hired 
in  Paris  a  year  before  to  do  it.  "  Though,"  says  he,  "  the  Lord 
Chief  Justice  told  the  King  that '  all  his  discourse  was  so  dis- 
jointed he  did  not  believe  him  guilty,'  yet  upon  his  own  con- 
fession the  jury  found  him  guilty,  and  he  was  executed 
accordingly : "  the  historian  adds,  "  though  no  man  could 
imagine  any  reason  why  a  man  should  so  desperately  throw 
away  his  life,  which  he  might  have  saved  though  he  had  been 
guilt}^,  since  he  was  accused  only  upon  his  own  confession,  yet 
neither  the  judges  nor  any  present  at  the  trial  did  believe  him 
guilty,  but  that  he  was  a  poor  distracted  wretch,  weary  of  life, 
and  chose  to  part  with  it  this  way."  * 

Three  men  were  tried  and  convicted  of  the  murder  of  a  Mr. 
Harrison.  One  of  them  confessed  himself  guilty  of  the  fact 
under  a  promise  of  pardon.  The  confession,  therefore,  was  not 
given  in  evidence  against  him,  and  a  few  years  afterwards  it 
appeared  that  Mr.  Harrison  was  alive.^ 

A  very  remarkable  case  of  this  nature  was  that  of  the  two 
Boorns,  convicted  in  the  Supreme  Court  of  Vermont  in  Sep- 
tember term,  1819,  of  the  murder  of  Kussell  Colvin,  May  10, 
1812.  It  appeared  that  Colvin,  who  was  the  brother-in-law  of 
the  prisoner's,  was  a  person  of  a  weak  and  not  perfectly  sound 
mind  ;  that  he  was  considered  burdensome  to  the  family  of  the 

1  1  Rushworth's  CoUections,  688.  2  Foster's  C.  L.  244  (3d  Ed.). 

8  See  the  case  of  Riembaur,  a  Bavarian  priest,  charged  with  murder,  in 
Narratives  of  Remarkable  Criminal  Trials,  by  Feuerbach,  ut  supra. 

*  Life  and  Continuation,  etc.,  94  [Clarendon  Ed.  1824] ;  and  see  2  Mem. 
of  Romilly,  182,  where  it  is  stated  that  an  innocent  man  was  executed 
erroneously  by  the  sentence  of  a  court-martial,  on  a  charge  of  mutiny. 

^  MS.  case,  cited  1  Leach,  264,  n.  ;  Eoscoe's  Crim.,  Bv,  (Pth  Am.  Ed.)  67. 


CONFESSIONAL  EVIDENCE.  121 

prisoners,  who  were  obliged  to  support  him  ;  that  on  the  day 
of  his  disappearance,  being  in  a  distant  field,  where  the  prison- 
ers were  at  work,  a  violent  quarrel  broke  out  between  them, 
and  that  one  of  them  struck  him  a  violent  blow  on  the  back  of 
the  head  with  a  club,  which  felled  him  to  the  ground.  Some 
suspicions  arose,  at  that  time,  that  he  was  murdered ;  which 
^vere  increased  by  the  finding  of  his  hat  in  the  same  field,  a 
few  months  afterwards.  These  suspicions  in  process  of  time 
subsided ;  but  in  1819,  one  of  the  neighbors  having  repeatedly 
dreamed  of  the  murder,  with  great  minuteness  of  circum- 
stances, both  in  regard  to  his  death  and  the  concealment  of  his 
remains,  the  prisoners  were  vehemently  accused,  and  generally 
believed  guilty  of  the  murder.  Upon  strict  search,  the  pocket- 
knife  of  Colvin,  and  a  button  of  his  clothes,  were  found  in  an 
old  open  cellar  in  the  same  field ;  and  in  a  hollow  stump,  not 
many  rods  from  it,  were  discovered  tw^o  nails  and  a  number  of 
bones  believed  to  be  those  of  a  man.  Upon  this  evidence, 
together  with  the  deliberate  confession  of  murder  and  conceal- 
ment of  the  body  in  those  places,  they  were  convicted  and 
sentenced  to  die.  On  the  same  day  they  applied  to  the  legis- 
lature for  a  commutation  of  the  sentence  of  death,  to  that  of 
perpetual  imprisonment ;  which  as  to  one  only  of  them  was 
granted.  The  confession  now  being  withdrawn  and  contra- 
dicted, and  a  rew^ard  offered  for  the  discovery  of  the  missing 
man,  he  was  found  in  'New  Jersey,  and  returned  home  in  time 
to  prevent  the  execution.  He  had  fled  for  fear  that  they 
would  kill  him.  The  bones  were  those  of  an  animal.  The 
prisoners  had  been  advised  by  some  misjudging  friends,  that, 
as  they  w^ould  certainly  be  convicted,  upon  the  circumstances 
proved,  their  only  chance  for  life  was  by  a  commutation  of 
punishment,  and  that  this  depended  on  their  making  a  peni- 
tential confession,  and  thereupon  obtaining  a  recommendation 
to  mercy.i 

The  State  Trials  contain  numerous  confessions  of  witchcraft, 
and  abound  with  absurd  and  incredible  details  of  communica- 
tions with  evil  spirits,  which  only  show  that  the  parties  were 
either  impostors,  or  the  involuntary  victims  of  invincible  self- 
delusion.  One  kind  of  false  confession,  that  namely  of  being 
a  deserter,  was  so  common  in  England  as  to  have  been  made 

1  1  Greenl.  Ev.  §  14,.n.  And  see  the  case  of  the  Perrys,  mfra,  and  a  case 
in  Whsrton's  Criin.  L.  315. 


122  CONFESSIONAL  EVIDENCE. 

the  subject  of  penal  repression  by  rendering  the  offender  liable 
to  be  treated  as  a  rogue  and  vagabond,  and  to  be  imprisoned 
for  any  period  not  exceeding  three  months.^ 

It  has  been  well  said  that  "  whilst  such  anomalous  cases 
ought  to  render  courts  and  juries  at  all  times  extremely  watch- 
ful of  every  fact  attendant  on  confessions  of  guilt,  the  cases 
should  never  be  invoked  or  so  urged  by  the  accused's  counsel 
as  to  invalidate  indiscriminately  all  confessions  put  to  the  jury, 
thus  repudiating  those  salutary  distinctions  which  the  Court, 
in  the  judicious  exercise  of  its  duty,  shall  be  enabled  to  make. 
Such  a  use  of  these  anomalies,  which  should  be  regarded  as 
mere  exceptions,  and  which  should  speak  only  in  the  voice  of 
warning,  is  no  less  unprofessional  than  impolitic,  and  should 
be  regarded  as  offensive  to  the  intelligence  both  of  the  Court 
and  jury."  * 

It  is  essential  to  justice,  that  a  confessional  statement,  if  it 
be  consistent,  probable,  and  uncontradicted,  should  be  taken 
together,  and  not  distorted,  or  but  partially  adopted.^  It  is 
error  to  refuse  to  admit  all  that  was  said  by  a  prisoner  when  a 
part  of  the  conversation  has  been  introduced  as  a  confession.^ 
And  counsel  who  has  consented  to  allow  part  of  a  conversation 
to  be  proved  cannot  object  to  the  residue  on  grounds  which 
apply  to  the  whole.^  The  rule,  however,  does  not  exclude  a 
confession  where  only  part  of  what  the  defendant  said  was 
overheard.^  Nor  is  a  confession,  if  full  and  unqualified^  inad- 
missible because  an  interruption  has  prevented  the  defendant 
from  adding  something  favorable  to  himself.^  But  it  is  inad- 
missible if,  by  the  interruption,  the  defendant  has  been  pre- 
vented from  saying  all  he  wished  to  say.®  And  no  part  of  a 
confession  should  be  received  where  the  witness  did  not  under- 
stand all  that  the  prisoner  said  to  him.^    Nor  is  a  confession 

1  Stat.  20  Vict.  13,  c.  49.  ^  i  Hoffman's  Course  of  Legal  Study,  367. 

3  Abbott,  C.  J.,  in  the  Queen's  Case,  2  Brod.  &  Bing.  297.  And  see  Kelsey 
V.  Bush,  2  Hill,  440 ;  People  v.  Penhallon,  43  Hun,  103 ;  State  v.  Miller 
(Del.),  32  Atl.  137;  9  Houst.  564. 

*  Long  V.  State,  22  Ga.  40  ;  People  v.  Davis,  3  Cal.  106.  And  see  Eiland 
u.  State,  52  Ala.  322. 

6  State  V  McDonald,  73  N.  C.  346. 

6  State  V.  Covington,  2  Bail.  569  ;  State  v.  Pratt,  88  N.  C.  639  ;  Com.  v. 
Pitsinger,  110  Mass.  101. 

7  Levison  v.  State,  54  Ala.  520. 

8  Crawford  v.  State,  4  Cold.  190  ;  Miller  v.  State,  40  Ala.  50. 

9  People  V.  Gilabert,  39  Cal.  653. 


CONFESSIONAL  EVIDENCE.  123 

admissible  if  the  witness  does  not  remember  the  substance  of 
all  that  was  said  at  the  time.^  But  it  is  not  to  be  rejected 
merely  because  the  witness  does  not  recollect  the  whole  of  the 
conversation.'^ 

On  the  trial  of  a  man  for  a  murder  committed  twenty-four 
years  before,  the  principal  inculpatory  evidence  consisted  of  his 
confession,  which  stated  in  substance  that  he  was  present  at 
the  murder,  but  went  to  the  spot  without  any  previous  knowl- 
edge that  a  murder  was  intended,  and  took  no  part  in  it.  It 
was  urged  that  the  prisoner's  concurrence  must  be  presumed 
from  his  presence  at  the  murder,  but  Mr.  Justice  Littledale 
held  that  the  statement  must  be  taken  as  a  whole ;  and  that  so 
qualified,  it  did  not  in  fairness  amount  to  an  admission  of  the 
guilt  of  murder ;  ^  and  where  the  prisoner's  declaration,  in 
which  she  asserted  her  innocence,  was  given  in  evidence,  and 
there  was  evidence  of  other  statements  confessing  guilt,  the 
judge  left  the  whole  of  the  conflicting  statements  to  the  jury 
for  their  consideration.  But  Avhere  there  is,  in  the  whole  case, 
no  evidence  but  what  is  compatible  with  the  assertion  of  inno- 
cence, adduced  in  evidence  for  the  prosecution,  the  judge  will 
direct  an  acquittal.*  In  the  case  of  Strahan  and  Paul,  it  was 
unsuccessfully  contended,  that  the  admission  made  by  the  pris- 
oner Strahan  must  be  taken  to  the  whole  extent  to  which  it 
was  made,  and  that  it  would  then  fairly  and  reasonably  lead  to 
the  conclusion  that  he  had  known  nothing  of  the  fraudulent 
transactions  in  which  the  other  prisoner  was  the  leading  actor 
in  March,  185-4 ;  but  Mr.  Baron  Alderson  told  the  jury  that 
they  were  not  bound  to  believe  either  the  whole  or  any  part  of 
the  statement  made  by  the  prisoner  Strahan,  and  that  they 
must  take  it  with  this  consideration  as  one  of  the  circumstances 
of  the  case  and  no  more.^ 

The  credibility  of  a  confession,  or  the  effect  or  weight  to 
which  it  is  entitled,  it  is  the  province  of  the  jury  to  determine. 

1  Berry  v.  Com.,  10  Bush  (Ky.),  15  ;  State  v.  Hughes,  29  La.  Ann.  514. 

2  Kendall  v.  State,  65  Ala.  493  ;  State  v.  Pratt,  88  N.  C.  639  ;  Pond  v. 
State,  55  Ala.  196.  If  the  prisoner,  in  speaking  of  the  testimony  of  one 
who  had  testified  against  him,  says  that  "  what  he  said  was  true  so  far  as 
he  went,  but  he  did  not  say  all  or  enough  ; "  this  is  not  admissible  as  a  con- 
fession, nor  does  it  warrant  proof  to  the  jury  of  what  the  witness  did  swear 
to.     Finn  v.  Com.,  5  Rand.  701. 

3  Rex  V.  Clewes,  4  C.  &  P.  231,  and  Short-hand  Rep. 

*  Rex  V.  Jones,  3  C.  &  P.  629.  ^  c.  C.  C,  Oct.  1855. 


124  CONFESSIONAL  EVIDENCE. 

In  the  consideration  and  determination  of  these  inquiries  they 
must  look  to  all  the  facts  and  circumstances  under  which  the 
confession  was  made,i  the  motives  which  induced  it,  and  its 
consistency  with  the  other  evidence,  and  may  believe  such  facts 
as  they  have  reason  for  believing,  and  reject  such  facts  as  they 
think  unworthy  of  credence.^  If  the  confessional  statement  is 
inconsistent,  improbable,  or  incredible,  or  is  contradicted  or 
discredited  by  other  evidence,  or  is  the  emanation  of  a  weak  or 
excited  state  of  mind,  the  jury  may  exercise  their  discretion  in 
rejecting  it,  either  wholly  or  in  part,  whether  the  rejected  part 
make  for  or  against  the  prisoner.^  "  It  is  a  rule  of  law,"  said 
Lord  Ellenborough,  "  that  when  evidence  is  given  of  what  a 
party  has  said  or  sworn,  all  of  it  is  evidence  (subject  to  the 
consideration  of  the  jury,  however,  as  to  its  truth),  coming,  as 
it  does,  in  one  entire  form  before  them ;  but  you  may  still 
judge  to  what  parts  of  the  whole  you  can  give  credit ;  and 
also  whether  that  part  which  appears  to  confirm  and  fix  the 
charge  does  not  outweigh  that  which  contains  the  exculpation."  * 
The  jury  may  believe  part  and  disbelieve  part ;  ^  but  such  facts 
must  be  distinct  and  relate  to  different  matters  of  fact.^  And 
though  the  circumstances  under  which  a  confession  was  made 
may  not  be  such  51s  to  render  it  incompetent  testimony,  they 
may  nevertheless  be  considered  by  the  jury  as  affecting  the 
weight  to  be  attached  to  the  confession.^  Where  a  witness 
testifies  to  a  confession  made  to  a  third  person  in  the  dark  by 
the  prisoner,  whom  he  identifies  only  by  his  voice,  this  testi- 
mony is  competent,  but  the  sufficiency  of  the  identification  is 
for  the  jury .8 

1  State  V.  Miller  (Del.),  32  Atl.  137  ;  9  Houst.  564. 

2  Young  V.  State,  68  Ala.  569  ;  Welsh  v.  State,  11  So.  450  ;  3  Brick.  Dig. 
§550. 

8  Rex  V.  Higgins,  3  C.  &  P.  603  ;  Rex  v.  Steptoe,  4  C.  &  P.  397  ;  Roberts 
V.  Gee,  15  Barb.  449  ;  1  Greenl.  Ev.  §  218. 

*  Rex  V.  Lord  Cochran  and  others,  Gurney's  Rep.  479.  And  see  Green  v. 
State,  13  Mo.  382 ;  Brown's  Case,  9  Leigh,  332  ;  Bower  v.  State,  5  Mo.  364  ; 
Griswold  v.  State,  24  Wis.  144. 

^  Bank  of  Washington  v.  Harrington,  2  Penn.  27  ;  Young  v.  State,  2  Yerg. 
292  ;  Kelsey  v.  Bush,  2  Hill,  440  ;  State  v.  Mahan,  32  Vt.  241 ;  People  v. 
Wyman,  15  Cal.  70  ;  State  v.  Hollenscheit,  61  Mo.  302  ;  McHenry  v.  State, 
40  Tex.  46. 

6  Fox  V.  Lambson,  2  Halst.  275.  And  see  Hick's  Case,  1  City  Hall  Rec. 
66  ;  People  v.  Weeks,  3  Wheel.  Cr.  Cas.  533. 

"i  State  V.  Gorham  (Vt.),  31  Atl.  845.        8  Fussell  v.  State,  93  Ga.  450. 


CONFESSIONAL  EVIDENCE.  125 

On  the  trial  of  a  man  for  setting  fire  to  a  stack  of  hay,  it  ap- 
peared that  between  two  and  three  o'clock  in  the  morning  a 
police  constable,  attracted  by  the  cry  of  fire,  went  to  the  spot, 
close  to  which  he  met  the  prisoner,  who  told  him  that  a  haystack 
was  on  fire  and  that  he  was  going  to  London ;  the  policeman 
asked  him  to  give  information  of  the  fire  to  any  other  policeman 
he  might  meet,  and  request  him  to  come  and  assist.  Shortly 
afterwards,  on  his  way  towards  London,  the  prisoner  met  a 
sergeant  of  police,  whom  he  informed  of  the  fire,  stating  that  he 
Avas  the  man  who  set  the  stack  on  fire,  upon  which  he  was  taken 
into  custody.  The  sergeant  of  police,  on  cross-examination  by  the 
prisoner,  stated  that  the  magistrates  entertained  an  opinion  that 
he  was  insane,  and  directed  inquiries  to  be  made,  from  which  it 
appeared  that  he  had  before  been  charged  with  some  offence, 
and  acquitted  on  the  ground  of  insanity.  When  apprehended, 
the  prisoner  appeared  under  great  excitement ;  and  upon  his 
^rial  he  alleged  that  he  had  been  confined  two  years  in  a  lunatic 
asylum,  and  had  been  liberated  only  about  a  year  ago ;  that 
his  mind  had  been  wandering  for  some  time  ;  and  that  passing 
by  the  place  at  the  time  of  the  fire,  he  was  induced,  in  a  moment 
of  delirium,  to  make  this  groundless  charge  against  himself. 
He  begged  the  court  to  explain  to  the  jury  the  different  result 
that  would  follow  from  his  being  acquitted  on  the  ground  of 
insanit)^,  and  an  unconditional  acquittal ;  and  said  that  rather 
than  the  former  verdict  should  be  returned,  which  would  prob- 
ably have  the  effect  of  immuring  him  in  a  lunatic  asylum  for 
the  rest  of  his  life,  he  would  retract  his  plea  of  not  guilty,  and 
plead  guilty  to  the  charge.  Mr.  Justice  Williams,  in  summing 
up,  remarked  that  there  did  not  appear  to  be  the  least  evidence 
against  the  prisoner  except  his  own  statement ;  and  that  it  was 
for  the  jury  to  say  under  all  the  circumstances  whether  they 
believed  that  statement  was  founded  in  fact,  or  whether  it  was, 
as  the  prisoner  alleged,  merely  the  effect  of  an  excited  imagin- 
ation and  weak  mind.     The  prisoner  was  acquitted.^ 

There  is  no  rule  of  law  whicli  compels  jurors  to  beheve  con- 
fessions made  by  a  defendant  when  he  is  sober,  in  preference 
to  those  of  a  contradictory  character  made  when  drunk.  The 
relative  credibility  of  the  statements  is  a  question  for  the  jury.^ 

^  Reg.  V.  Wilson,  Maidstone  Wint.  Ass.  1844.  The  same  doctrine  was 
held  bj'  L.  C.  J.  Wilde,  in  a  case  of  arson  at  Maidstone  Spring  Assizes,  1847, 
where  the  prisoner  to  conceal  his  disgrace  refused  to  give  his  name. 

2  Finch  V.  State,  1  So.  565. 


126  CONFESSIONAL  EVIDENCE. 

In  an  English  case  the  constable  had  given  liquor  to  the  prisoner 
to  cause  him  to  make  confessional  statements.  The  judge  said 
that  it  was  a  matter  of  observation  to  the  jury  as  to  the  degree 
of  credit  to  which  such  statements  Avere  entitled.^  In  a  New 
York  case  of  similar  facts  the  judge  said  that  the  argument  which 
had  been  made  to  convince  the  court  that  the  evidence  should 
have  been  stricken  out,  might,  with  more  propriety,  have  been 
addressed  to  the  jury  to  satisfy  them  that  the  confessions  of 
the  prisoner  while  in  that  condition  were  not  reliable  and 
ouight  not  to  have  been  used  for  his  conviction.^ 


Section  II. 
Indirect  Confessional  Evidence, 

It  is  obvious  that  every  caution  observed  in  the  reception  of 
evidence  of  a  direct  confession  ought  to  be  more  especially  ap- 
plied in  the  admission  and  estimation  of  the  analogous  evidence 
of  statements  which  are  only  indirectly  in  the  nature  of  con- 
fessional evidence  ;  since  such  statements,  from  the  nature  of 
the  case,  must  be  ambiguous,  or  relate  but  obscurely  to  the 
corpus  delicti. 

"  How  easy  is  it,"  it  has  been  admirably  said,  "  for  the  hearer 
to  take  a  word  in  a  sense  not  intended  by  the  speaker,  and  for 
want  of  an  exact  representation  of  the  tone  of  voice,  emphasis, 
countenance,  eye,  manner,  and  action  of  the  one  who  made  the 
confession,  how  almost  impossible  it  is  to  make  third  persons 
understand  the  exact  state  of  his  mind  and  meaning !  For 
these  reasons  such  evidence  is  received  with  great  distrust  and 
under  apprehension  for  the  wrong  it  may  do."  ^ 

And  this  evidence,  as  was  said  by  Sir  Michael  Foster  in  a 
passage  heretofore  cited,  "  is  not  in  the  ordinary  course  of  things 
to  be  disproved  by  that  sort  of  negative  evidence  by  Avhich  the 
proof  of  plain  facts  may  be  and  often  is  confronted."  * 

Upon  the  trial  of  a  man  for  the  murder  of  a  woman,  who 

1  Rex  V.  Spillbury,  7  C.  &  P.  187. 

2  Jeflferds  v.  People,  5  Park.  Cr.  Rep.  533.  See  also  People  v.  McMahon, 
15  N.  Y.  384. 

*  In  Resp.  V.  Fields,  Peck's  Rep.  140,  quoted  in  1  Taylor's  L.  of  Ev.  689, 
ad  Ed.  *  Foster's  C.  L.  343.     And  see  1  Greenl.  Ev.  §  814. 


CONFESSIONAL  EVIDENCE.  127 

had  been  brutally  assaulted  by  three  men  and  died  from  the  in- 
juries she  received,  it  appeared  that  one  of  the  offenders,  at 
the  time  of  the  commission  of  the  outrage,  called  another  of 
them  by  the  prisoner's  name,  from  which  circumstances  sus- 
picion attached  to  him.  A  person  deposed  that  he  met  the 
prisoner  at  a  public-house,  and  asked  him  if  he  knew  the  woman 
Yv^ho  had  been  so  cruelly  treated,  and  that  he  answered,  "  Yes, 
what  of  that  ? "  The  witness  said  that  he  then  asked  him  if 
he  was  not  one  of  the  parties  concerned  in  that  affair;  to 
which  he  answered,  according  to  one  account,  "  Yes,  I  was ; 
and  what  then ? "  or,  as  another  account  states,  "If  I  was, 
what  then  ? "  It  appeared  that  the  prisoner  was  intoxicated, 
and  that  the  questions  were  put  with  a  view  of  ensnaring  him  ; 
but  influenced  by  this  imprudent  language,  the  jury  convicted 
him,  and  he  was  executed.  The  real  offenders  were  discovered 
about  two  years  afterwards,  and  two  of  them  were  executed 
for  this  very  offence,  and  fully  admitted  their  guilt ;  the  third 
having  been  admitted  to  give  evidence  for  the  Crown.^ 

Nevertheless  the  conduct,  demeanor,  or  expressions  of  a 
prisoner  on  being  charged  with  a  crime,  or  upon  allusions  be- 
ing made  to  it,  are  evidence  against  him.-  In  almost  every 
criminal  case  a  portion  of  the  evidence  laid  before  the  jury 
often  consists  of  the  conduct  of  the  party  either  before  or 
after  being  charged  with  the  offence,  presented  not  as  a  part 
of  the  res  gestce^  but  as  indicative  of  a  guilty  mind.^  In  the 
most  debased  persons  there  is  an  involuntary  tendency  to  truth 
and  consistency,  except  when  the  mind  is  on  its  guard,  and 
studiously  bent  upon  concealment ;  and  this  law  of  our  nature 
sometimes  gives  rise  to  minute  and  unpremeditated  acts  of 
great  weight.  Acts  speak  as  well  as  words,  and  they  are  to  be 
interpreted  by  the  common  experience  of  mankind.*  A  con- 
fession may  be  inferred  from  the  conduct  of  a  prisoner  Avhen  a 
statement  affecting  him  is  made  in  his  presence.*  The  circum- 
stance of  observations  being  made  to  the  accused  by  his  wife, 
who  could  not  be  called  as  a  witness  to  contradict  the  state- 

^  Rex  V.  Coleman,  Kingston  Spring  Ass.  1748-9,  and  1  Remarkable  Trials, 
163,  172  ;  Rex  v.  Jones  and  Welch,  4  Celebrated  Trials,  344. 

2  Mason  v.  State,  43  Ala.  533. 

8  Roscoe  Cr.  Ev.  (8th  Am.  Ed.)  30  ;  Jamison  v.  People,  34  N.  E.  486. 

*  Murrell  v.  State,  46  Ala.  89  ;  Greenfield  v.  People,  85  N.  Y.  75. 

6  DonneUy  v.  State,  2  Dutch.  463,  601 ;  People  v.  Green,  1  Park.  Crim. 
Rep.  11. 


128  CONFESSIONAL  EVIDENCE. 

ments,  was  held  not  to  vary  the  general  rule  that  whatever 
was  said  to  a  prisoner  on  the  subject-matter  of  the  charge,  to 
which  he  made  no  direct  answer,  might  be  received  as  an  im- 
plied admission  on  his  part.^  So  where  the  wife  of  the  pris- 
oner who  was  indicted  for  the  murder  of  his  wife's  mother 
came  into  the  room,  where  he  was  in  custody,  and  said  to  him : 
"  Oh,  Bartlett !  how  could  you  do  it  ?  "  He  looked  steadfastly 
at  her,  and  said,  "  Oh,  what !  you  accuse  me  of  the  murder 
too  ?  "  She  said,  "  I  do,  Bartlett ;  you  are  the  man  that  shot 
ni}"  mother."  The  prisoner  did  not  make  any  reply.  She  then 
turned  to  the  witness  and  said,  "  This  was  done  for  money." 
The  evidence  was  held  clearly  admissible,  though  the  wife 
could  not  be  examined  on  oath.^ 

The  silence  of  a  prisoner  when  accused  by  a  companion  of 
committing  the  crime  for  which  he  is  indicted  is  a  circumstance, 
though  very  slight,  for  the  consideration  of  the  jury.^  But  no 
admission  can  be  inferred  from  silence  when  the  silence  can  be 
explained.*  In  California  it  is  declared  that  an  inference  of 
guilt  cannot  be  drawn  from  silence  where  a  person  is  not  bound 
to  speak,  nor  from  a  refusal  to  answer  unauthorized  questions 
touching  the  charge  against  him,  which  under  the  circum- 
stances called  for  no  reply .^  Where  the  truth  or  falsehood  of 
a  material  fact  is  not  knoAvn  to  a  party  to  whom  the  fact  is  as- 
serted to  exist,  his  silence  furnishes  no  evidence  against  him.^ 
"While  a  confession  is  incompetent  against  a  co-defendant  who 
was  not  present  when  it  was  made,  it  is  competent  when  made 
in  the  presence  of  the  latter,  and  under  such  circumstances  as 
would  warrant  the  inference  that  he  would  naturally  have 
contradicted  them  if  he  did  not  assent  to  their  truth.^ 

And  the  deportment  of  the  accused  when  confronted  with 
the  corpse  of  the  deceased  may  be  shown. ^     And  after  the 

1  Rex  V.  Smithies,  5  C.  &  P.  332. 

2  Rex  V.  Bartlett,  7  C.  &  P.  833,  quoted  in  3  Russ.  on  Crimes  (9th  Am.  Ed.) 
433. 

3  Ettinger  v.  Com.,  98  Pa.  St,  338  ;  Puett  v.  Beard,  86  Ind.  104  ;  Kendrick 
V.  State,  55  Miss.  436 ;  Kelly  v.  People,  55  N.  Y.  565  ;  State  v.  Bowman,  80 
N.  Y.  433.     But  see  Campbell  v.  State,  55  Ala.  80. 

4  Slattery  v.  People,  76  111.  317  ;  Broyles  v.  State,  47  Ind.  351. 

5  Cal.  Pen.  Code,  §§  1958,  1960.  See  People  v.  Elster,  5  Crim.  L.  Mag. 
687. 

6  Robinson  v.  Blen,  30  Ind.  109. 

"  Spoof  V.  U.  S.,  156  U.  S.  51  ;  39  L.  Ed.  343  ;  15  Sup.  Ct.  Rep.  373. 
8  Handline  v.  State,  6  Tex.  Crim.  App.  347. 


CONFESSIONAL  EVIDENCE.  .Jgg 

State  has  introduced  such  evidence  the  defendant  may  not 
prove  what  he  said  at  the  time.^  Evidence  may  be  admitted 
of  an  attempt,  at  a  former  trial  of  the  same  cause,  to  corrupt 
a  juror,  as  tending  to  prove  the  cause  of  action,  or  ground  of 
defence  relied  upon  by  the  party  making  such  attempt,  false 
and  dishonest.2  And  evidence  that  a  justice,  who  performed  a 
marriage  ceremony  in  which  the  girl  was  apparently  under  the 
age  of  consent,  omitted  all  inquiry  for  her  parents,  is  admissible 
to  show  that  he  knew  the  marriage  was  unlawful.^ 

On  a  trial  for  murder  a  witness  was  allowed  to  testify  as  to 
the  conduct  of  the  defendant  when  arrested,  and  the  comments 
of  a  third  person  at  the  tmie  with  regard  thereto.*  In  the 
trial  of  an  indictment  for  maintaining  a  liquor  nuisance,  evi- 
dence of  the  bar-keeper's  conduct  was  admitted  with  other  cir- 
cumstances to  show  guilt.^  And  on  an  indictment  for  murder 
evidence  was  admitted  as  to  the  prisoner's  dodging,  trembling, 
and  confusion  when  met  by  the  witnesses  before  and  at  the 
time  of  his  arrest.^  And  it  may  be  shown  that  one  charged 
with  homicide  manifested  great  uneasiness  at  the  inquest,  tak- 
ing different  persons  to  one  side  and  questioning  them  as  to 
whom  they  suspected  of  the  murder,  and  that  he  advised  and 
cautioned  secretly  another  on  trial  for  the  same  murder.'' 

In  the  memorable  case  of  Eugene  Aram,  who  was  tried  in 
1759  for  the  murder  of  Daniel  Clark,  an  apparently  slight  cir- 
cumstance in  the  conduct  of  his  accomplice  led  to  his  convictiob 
and  execution.  About  thirteen  years  after  the  time  of  Clark'a 
being  missing,  a  laborer  employed  in  digging  for  stone  to 
suppl}^  a  limekiln  near  Knaresborough  discovered  a  human 
skeleton  near  the  edge  of  the  cliff.  It  soon  became  suspected 
that  the  body  was  that  of  Clark,  and  the  coroner  held  an  in- 
quest. Aram  and  Houseman  were  the  persons  who  had  last 
been  seen  with  Clark,  on  the  night  before  he  was  missing. 
The  latter  was  suimnoned  to  attend  the  inquest,  and  discovered 
signs  of  uneasiness :  at  the  request  of.  the  coroner  he  took  up 
one  of  the  bones,  and  in  his  confusion  dropped  this  unguarded 
expression :  "  This  is  no  more  Daniel  Clark's  bone  than  it  is 

1  U.  S.  V.  Neverson,  1  Mack.  (D.  C.)  152. 

2  Hastings  v.  Stetson,  130  Mass.  76 ;  Gulerette  v.  McKinley,  27  Hun,  320. 

3  Banker  v.  People,  37  Mich.  4.  *  People  v.  Ah  Fook,  64  Cal.  38a 
6  Com.  V.  Locke,  5  N.  Eng.  498.  «  Beaven  v.  State,  58  Ind.  530. 

''  Johnson  v.  State,  18  Tex.  dim.  App.  885. 
9 


130  CONFESSIONAL  EVIDENCE. 

mine ;  "  from  which  it  was  concluded,  that  if  he  was  so  certain 
that  the  bones  before  him  were  not  those  of  Clark,  he  could 
give  some  account  of  him.  He  was  pressed  with  this  obser- 
vation, and  after  various  evasive  accounts,  he  made  a  full  con- 
fession of  the  crime ;  and  upon  search,  pursuant  to  his  state- 
ment, the  skeleton  of  Clark  was  found  in  St.  Kobert's  Cave, 
buried  precisely  as  he  had  described  it.^ 

A  remarkable  fact  of  the  same  kind  occurred  in  the  case  of 
one  of  three  men  convicted,  in  February,  1807,  of  a  murder  on 
Hounslow  Heath.  In  consequence  of  disclosures  made  by  an 
accomplice,  a  police  officer  apprehended  the  prisoner  four  years 
after  the  murder  on  board  the  "  Shannon  "  frigate,  in  which  he 
was  serving  as  a  marine.  The  officer  asked  him  in  the  presence 
of  his  captain  where  he  had  been  about  three  years  before ; 
to  which  he  answered  that  he  was  employed  in  London  as  a 
day-laborer.  He  then  asked  him  where  he  had  been  employed 
that  time  four  years ;  the  man  immediately  turned  pale,  and 
would  have  fainted  away  had  not  water  been  admmistered  to 
him.  These  marks  of  emotion  derived  their  weight  from  the 
latency  of  the  allusion,  no  express  reference  having  been  made 
to  the  offence  with  which  the  prisoner  was  charged,  and  from 
the  probability  that  there  must  have  been  some  secret  reason 
for  his  emotion  connected  with  the  event  so  obscurely  referred 
to,  particularly  as  he  had  evinced  no  such  feeling  upon  the  first 
question,  which  referred  to  a  later  period.^ 

To  this  head  may  be  referred  the  acts  of  concealment,  dis- 
guise, flight,  and  other  indications  of  mental  emotion  usually 
found  in  connection  with  guilt.^  As  a  circumstance  tending  to 
prove  the  guilt  of  the  accused,  the  fact  that  he  concealed  him- 
self immediately  after  the  commission  of  the  crime  is  admis- 
sible, and  if,  in  such  a  case,  the  defendant  offers  evidence  to 
show  that  instead  of  concealing  himself  he  was  publicly 
walking  about  the  streets,  evidence  may  be  admitted  in  re- 
buttal to  show  that  while  so  in  the  streets  he  was  under  an 
attempted  disguise.*    The  use  of  a  fictitious  name  by  the  ac- 

1  Life  and  Trial  of  Eugene  Aram  ;  and  see  Biog.  Brit,  article  Eugene 
Aram. 

2  Rex  V.  Haggerty  and  others,  6  Celebrated  Trials,  19  ;  and  Session  Papers, 
1807. 

8  Rex  V.  Crossfield,  26  St.  Tr.  216  et  seq. ;  and  Rex  v.  O'Coigley,  27  Id. 
138. 
*  Com.  V.  Tolliver,  119  Mass.  312. 


CONFESSIONAL  EVIDENCE.  131 

cused  shortly  after  the  offence  may  be  shown.^  The  fact  that 
one  accused  of  theft  was  in  possession  of  the  stolen  property 
immediately  after  the  theft,  and  that  when  he  sold  it,  gave  a 
false  name,  is  sufficient  to  justify  a  conviction.^  Where  the 
defendant  was  charged  with  the  murder  of  a  woman  who  had 
been  his  mistress,  it  came  out  upon  the  trial  that  the  two  had 
quarrelled  a  short  time  before,  and  that  the  accused  was  very 
much  incensed  with  the  deceased  and  had  tried  to  shake  off  the 
liaison.  On  the  evening  when  the  woman  was  last  seen  alive 
she  left  the  house  with  accused,  expressing  an  intention  of 
returning.  Nothing  more  was  known  of  her  until  her  body 
was  some  time  after  found,  hidden  in  a  forsaken  place,  bearing 
marks  making  it  clear  that  the  woman  had  been  murdered. 
The  accused  returned  to  the  house  on  the  evening  of  the 
woman's  disappearance,  and  packed  up  everything  belonging  to 
her,  stating  that  she  had  gone  to  a  certain  place,  whither  he 
was  about  to  follow  her.  He  however  merely  moved  to  an- 
other part  of  the  same  city,  where  he  continued  to  live  under  an 
assumed  name.  It  appeared  that  shortly  after  the  disappearance 
of  the  woman  the  prisoner  had  pawned  a  watch  which  had 
belonged  to  her.  The  prisoner  was  found  guilty,  and,  on 
appeal,  the  conviction  was  sustained. ^ 

The  flight  of  one  charged  with  crime  immediately  after  the 
commission  of  the  offence  is  a  circumstance  tending  to  prove  guilt, 
and  may  always  be  taken  into  consideration.*  By  the  common 
law,  flight  was  considered  so  strong  a  presumption  of  guilt, 
that  in  cases  of  treason  and  felony  it  carried  the  forfeiture  of 
the  party's  goods,  whether  he  were  found  guilty  or  acquitted ;  ^ 
and  the  officer  always,  until  the  abolition  of  the  practice  by 
statute,^  called  upon  the  jury,  after  verdict  of  acquittal,  to  state 
whether  the  party  had  fled  on  account  of  the  charge.  Flight 
of  the  prisoner  to  escape  arrest  after  the  discovery  of  stolen 
property  in  his  possession  is  a  circumstance  against  him.^  It 
may  be  shown  that  the  accused  attempted  to  fly,  and  that  he 
resisted  arrest.^     On  an  indictment  for  rape,  where  the  defence 

1  State  V.  Ellwood,  24  Atl.  782  ;  Com.  v.  Griffin,  4  Allen,  310. 

2  Freese  v.  State,  21  S.  W.  189.  s  Terr.  v.  Biyson,  9  Mont.  32. 

*  Com.  V.  McMahon,  145  Pa.  St.  413  ;  People  v.  Ogle,  4  N.  Y.  Crim.  Rep. 
349  ;  State  v.  Rush,  95  Mo.  199  ;  State  v.  Griffin,  87  Mo.  608. 
6  Co.  Litt.  375.  6  7  and  8  Geo.  IV.  c.  28,  g  5. 

''  State  V.  Schoflfer,  70  la.  371.  8  Jamison  v.  People,  145  lU.  357. 


132  CONFESSIONAL  EVIDENCE. 

set  up  an  alihi^  evidence  was  held  admissible  to  show  by  a 
}X)lice  officer  that-  on  the  night  in  question,  and  shortly  after 
the  time  of  the  offence,  the  officer  met  the  defendant  as  the 
latter  was  going  on  to  a  bridge  leading  into  another  State,  and 
that  on  being  halted  by  the  officer  he  fired  his  revolver  at  the 
latter.  1 

Absence  from  a  to"\vn  where  a  crime  has  been  committed, 
when  not  explained,  is  indicative  of  flight,  and  may  be  con- 
strued as  a  circumstance  pointing  to  the  guilt  of  the  accused.^ 
On  a  trial  for  murder,  when  the  evidence  was  circumstantial, 
it  having  been  shown  that  a  few  days  after  the  homicide  the 
accused  left  the  neighborhood  and  did  not  return  for  some 
months,  evidence  w^as  admitted  to  show  his  intent  prior  to  the 
crime  to  remain  in  the  place,  of  the  fact  that  before  the  homi- 
cide he  contracted  with  one  in  the  neighborhood  to  work  for 
him,  and  to  commence  work  two  days  after  the  date  when  the 
murder  occurred,  and  that  he  never  came  to  comply  with  the 
contract.^ 

It  has  been  held  that  the  rule  extends  only  to  the  person 
fleeing,  and  that  the  flight  of  one  of  two  conspirators  cannot  be 
put  in  evidence  against  the  other  on  a  separate  trials  But 
where  the  defendant  was  accused  of  burglary,  he  and  another 
had  slept  in  a  barn,  and  near  them  were  found  the  stolen 
articles.  The  other  resisted  arrest  and  escaped,  and  this  fact 
was  permitted  to  be  commented  on  by  prosecution,^ 

It  may  be  proven,  as  tending  to  show  a  consciousness  of  guilt 
and  fear  of  conviction,  that  the  prisoner  fled  after  his  release 
on  bail.®  The  fact  that  bail  given  by  an  accused  was  "  straw 
bail,"  that  the  prisoner  forfeited  his  recognizance  by  voluntarily 
absenting  himself,  taken  in  connection  with  the  fact  that  the 
prisoner  passed  under  various  aliases,  were  proper  for  the  con- 
sideration of  the  jury.''' 

But  evidence  that  a  defendant  charged  with  rape,  who  had 
been  arrested  on  a  charge  of  assault  and  released  on  bail,  did 
not  run  away,  is  irrelevant,  and  all  the  more  so  that  the  charge 
of  rape  had  not  been  preferred  against  him  at  that  time.^ 

1  State  V.  Taylor,  117  Mo.  181.  2  Com.  v.  Annis,  15  Gray,  197. 

8  Welsh  V.  State,  96  Ala.  92.  <  People  v.  Stanley,  47  Cal.  113. 

5  Cummins  v.  People,  42  Mich.  142. 

6  Hart  V.  State,  22  Tex.  Crim.  App.  563  ;  State  v.  Williams,  43  Tex.  182. 

7  Ban-on  v.  People,  73  111.  256.       »  State  v.  Wilkins  (Vt.),  28  Atl.  323. 


CONFESSIONAL  EVIDENCE.  133 

An  escape  from  jail  may  be  shown ;  ^  and  an  escape  from 
custody  during  the  progress  of  a  trial  may  be  shown  on  a 
second  trial  of  the  same  indictment.^  And  an  attempt  to 
escape,  as  well  as  an  actual  escape,  may  be  proved.^  In  a  late 
case  evidence  was  admitted  of  the  facts  that  the  wire  netting 
on  the  outside  window  of  the  prisoner's  cell  was  cut,  and  that 
a  razor  and  gun-wrench  were  subsequently  found  in  his  posses- 
sion, as  tending  to  show  that  he  was  planning  an  escape.^  Tes- 
timony is  admissible  to  show  that  the  defendant  requested 
witness  to  assist  him  in  breaking  jail.^ 

These  several  acts  in  all  their  modifications  are  indications  of 
fear ;  ^  but  it  would  be  harsh  and  unreasonable  invariably  to  in- 
terpret them  as  indications  of  guilty  consciousness,  and  greater 
weight  has  sometimes  been  attached  to  them  than  they  have 
fairly  warranted.  Doubtless  the  manly  carriage  of  integrity 
always  commands  the  respect  of  mankind,  and  all  tribunals  do 
homage  to  the  great  principles  from  which  consistency  springs ; 
but  it  does  not  follow,  because  the  moral  courage  and  consist- 
ency which  generally  accompany  the  consciousness  of  upright- 
ness raise  a  presumption  of  innocence,  that  the  converse  is 
always  true.  Men  are  differently  constituted  as  respects  both 
animal  and  moral  courage,'  and  fear  may  spring  from  causes 
very  different  from  that  of  conscious  guilt ;  and  every  man  is 
therefore  entitled  to  a  candid  construction  of  his  words  and 
actions,  particularly  if  placed  in  circumstances  of  great  and 
unexpected  difficulty.^  In  a  case  where  it  was  claimed  to  be 
a  circumstance  evincive  of  the  guilt  of  one  accused  of  murder- 
ing his  wife,  that  he  showed  no  symptoms  of  grief  on  the 
morning  after  the  murder,  the  learned  judge  remarked  that 
"  innocent  persons,  appalled  by  the  enormity  of  a  charge  of 
crime,  will  sometimes  exhibit  great  weakness  and  terror,  and 
those  who  have  been  crushed  with  the  weight  of  a  great  sor- 
row will  manifest  the  greatest  composure  and  serenity  in  their 
grief,  and  meet  it  without  the  shedding  of  a  tear."  ^    An  in- 

1  People  V.  Myers,  3  Hun,  6.  2  Murrell  v.  State,  46  Ala. 

8  State  V.  Stevens,  67  la.  557  ;  Ryan  v.  State,  83  Wis.  486  ;  Palmer  v. 
Brody,  78  Wis.  483  ;  Anderson  v.  State,  2  West.  341  ;  Fanning  v.  State,  14 
Mo.  386.  *  State  v.  Palmer,  65  N.  H.  216. 

6  State  V.  Jackson,  95  Mo.  623.  e  state  v.  Moody,  50  la.  443. 

7  Elmore  v.  State,  98  Ala.  12. 

8  Per  Mr.  Baron  Gurney,  in  Reg.  v.  Delaney,  infra. 

9  Greenfield  v.  People,  85  N.  Y.  75. 


134  CONFESSIONAL  EVIDENCE. 

struction  upon  the  going  away  from  the  place  of  the  homicide 
of  one  charged  with  murder,  as  raising  a  presumption  of  guilt, 
should  be  so  framed  as  to  include  all  the  circumstances.  If 
the  accused  leaves  the  place  of  the  crime,  but  without  effort  at 
concealment,  this  will  not  raise  the  presumption  of  guilt.^ 
Mr.  Justice  Abbott,  on  a  trial  for  murder  where  evidence  was 
given  of  flight,  observed  in  his  charge  to  the  jury  that  "  a  per- 
son, however  conscious  of  innocence,  might  not  have  courage 
to  stand  a  trial ;  but  might,  although  innocent,  think  it  neces- 
sary to  consult  his  safety  by  flight."  "  It  may  be,"  added  the 
learned  judge,  "a  conscious  anticipation  of  punishment  for 
guilt,  as  the  guilty  will  always  anticipate  the  consequences ; 
but  at  the  same  time  it  may  possibly  be,  according  to  the 
frame  of  mind,  merely  an  inclination  to  consult  his  safety  by 
flight  rather  than  stand  his  trial  on  a  charge  so  heinous  and 
scandalous  as  this  is."  '■^  The  learned  judge  in  Professor  Web- 
ster's case,  said,  "  Such  are  the  various  temperaments  of  men, 
and  so  rare  the  occurrence  of  the  sudden  arrest  of  a  person 
upon  the  charge  of  a  crime  so  heinous,  that  who  of  us  can  say 
how  an  innocent  or  a  guilty  man  ought  or  would  be  likely  to 
act  in  such  a  case  ?  or  that  he  was  too  much  or  too  little 
moved  for  an  innocent  man  ?  Have  you  any  experience  that 
an  innocent  man,  stunned  under  the  mere  imputation  of  such 
a  charge,  will  always  appear  calm  and  collected?  or  that  a 
guilty  man,  who  by  knowledge  of  his  danger  might  be  some- 
what braced  up  for  the  consequences,  would  always  appear 
agitated  or  the  reverse  ? "  ^ 

The  fact  that  one  accused  of  larceny  was  excited  and 
nervous  while  his  boots  were  being  measured  to  ascertain  if 
they  corresponded  with  tracks  found  leading  from  the  place 
where  the  crime  had  been  committed,  was  said  not  to  be  a  fact 
from  which  an  inference  of  guilt  could  be  drawn.  An  innocent 
party  might  be  excited  under  such  a  charge,  and  this  would 
depend  on  mental  and  physical  peculiarities.  The  evidence  of 
excitement  is  peculiarly  objectionable,  because  it  is  likely  to  be 
given  by  parties  prepossessed  with  a  belief  of  the  guilt  of  the 
accused,  and  very  certain  from  that  fact  to  draw  unfavorable 
inferences  and  to  have  what  they  see  magnified  in  their  imag- 
ination.* 

1  State  V.  Fairlamb,  12  Mo.  137.  2  Rex  v.  Donnell,  infra. 

3  5  Cush.  295,  386.  *  People  v.  Wolcott,  5  Crim.  L.  Mag.  84 


I 


CONFESSIONAL  EVIDENCE.  I35 

An  attempt  to  escape  an  arrest  for  murder,  standing  alone, 
is  insufficient  to  warrant  a  conviction  of  the  crime.^ 

Flight  may  be  from  fear  of  private  vengeance  and  not  from 
consciousness  of  guilt.^  Prejudice  is  often  epidemic,  and  there 
have  been  periods  and  occasions  when  public  indignation  has 
been  so  much  and  so  unjustly  aroused,  as  reasonably  to 
deter  the  boldest  mind  from  voluntary  submission  to  the 
ordeal  of  a  trial.  The  consciousness  that  appearances  have 
been  suspicious,  even  where  suspicion  has  been  unwarrantable, 
has  sometimes  led  to  acts  of  conduct  apparently  incompatible 
with  innocence,  and  drawn  down  the  unmerited  infliction  of 
the  highest  legal  penalty.  The  inconclusiveness  of  these  cir- 
cumstances is  strikingly  exemplified  by  a  case  mentioned  in  a 
preceding  page,  where  the  magistrate  was  so  fully  convinced 
of  the  prisoner's  innocence  that  he  allowed  him  to  go  at  large 
on  bail  to  appear  at  the  assizes.  The  coroner's  inquest  having 
brought  in  a  verdict  of  "  guilty  "  against  him,  he  endeavored 
to  escape  from  the  danger  of  a  trial  in  the  excited  state  of  pub- 
lic feeling  by  flight ;  but  was  subsequently  apprehended,  con- 
victed, and  executed  on  a  charge  of  murder,  of  which  he  was 
unquestionably  guiltless.^  But  where  the  defence  claimed  that 
the  homicide  was  unpremeditated,  and,  to  rebut  the  presump- 
tion arising  from  flight,  offered  to  show  popular  excitement  and 
anticipated  violence,  but  it  appeared  that  the  defendant  fled 
before  there  was  any  demonstration  of  excitement,  and  so  soon 
after  the  commission  of  the  deed  that  there  could  not  arise  a 
well-grounded  apprehension  of  violence,  the  evidence  was 
excluded.*  And  it  has  recently  been  held  that  the  force  of  the 
circumstance  of  the  prisoner's  flight  immediately  after  the 
homicide  was  not  to  be  weakened  by  testimony  that  it  was  the 
general  talk  in  the  community  that  if  the  accused  was  found 
he  would  be  killed  without  arrest,  and  such  evidence  ought  not 
to  be  allowed  to  go  to  the  jury.^  But  excitement  existing 
after  arrest  may  be  shown  as  evidence  of  its  strength.^ 

It  is  not  possible  to  lay  down  any  express  test  by  which 

1  State  V.  Rector,  120  Mo.  635.  2  Lewis  v.  State,  96  Ala.  6, 

8  Rex  V.  Coleman,  ante,  78  ;  and  see  the  case  of  Green  and  others,  14  St, 
Tr.  1369,  where  several  persons,  one  of  whom  had  voluntarily  surrendered, 
were  convicted  in  Scotland  and  executed,  at  a  period  of  great  excitement 
against  Englishmen,  upon  a  groimdless  charge  of  piracy  and  murder. 

*  State  V.  Phillips,  24  Mo.  475.  6  Taylor  v.  Com.,  90  Va.  109. 

^  State  V.  PhilUps,  supra. 


136  CONFESSIONAL  EVIDENCE. 

these  various  indications  may  be  infallibly  referred  to  any 
more  specific  origin  than  the  operation  of  fear.  AVhether  that 
fear  proceeds  from  the  consciousness  of  guilt,  or  from  the 
apprehension  of  undeserved  disgrace  and  punishment,  and 
from  deficiency  of  moral  courage,  is  a  question  Avhich  can  be 
judged  of  only  by  reference  to  concomitant  circumstances. 

On  the  trial  of  a  prisoner  for  having  in  his  possession  with 
intention  to  utter,  and  for  passing,  a  counterfeit  note,  it  was 
shown  that  on  passing  the  bill  he  took  up  his  change  in  a  con- 
fused manner,  evincing  fear,  and  that,  at  the  time  of  his  arrest, 
he  offered  the  officer  one  hundred  dollars  to  release  him,  and 
attempted  to  escape  by  knocking  the  officer  down ;  that  he  gave 
a  confused  and  unsatisfactory  account  on  his  examination  in 
the  police  office,  and  stated  that  he  had  obtained  the  bill  from 
one  of  whom  nothing  further  was  known.  On  the  other  hand, 
it  appeared  that  he  passed  the  bill  to  a  person  whom  he  knew, 
that  he  gave  a  true  statement  of  his  business,  and  that  no  other 
spurious  bill  was  found  on  him.  He  had  been  in  prison  before, 
and  was  shown,  since  his  discharge,  to  have  borne  a  good  char- 
acter. Having  been  in  prison  before,  he  might  have  been 
prompted  to  offer  the  money  to  secure  his  escape,  by  the 
knowledge  of  the  impression  that  would  exist  against  him.^ 

That  one  accused  of  murder  showed  agitation  and  embar- 
rassment on  visiting  the  scene  of  the  crime  the  morning  after  its 
commission  and  before  he  was  suspected,  is  a  fact  of  little  im- 
portance when  considered  alone,  but  may  be  of  much  signifi- 
cance when  considered  in  connection  with  the  other  evidence 
in  the  case.^ 

The  fact  that  one  accused  of  so  grave  a  crime  as  murder 
turns  pale  at  the  time  of  being  arrested,  is  slight,  if  any, 
evidence  of  guilt,  but  is,  nevertheless,  competent  whether  it 
indicates  guilt  or  is  merely  the  disturbance  of  the  physical  sys- 
tem, as  likely  to  appear  in  an  innocent  as  a  guilty  man,  is  for 
the  jury  in  the  light  of  other  circumstances  and  the  acts  and 
declarations  of  the  accused.^ 

Whether  or  not  the  motive  for  an  escape  has  its  origin  in  the 
consciousness  of  guilt  and  the  dread  of  being  brought  to  justice, 
or  whether  it  can  be  explained  and  attributed  to  some  other 

'  People  V.  Quackenboss,  1  Wheel.  Cr.  Cas.  91. 

2  Preston  v.  State,  8  Tex.  App.  30. 

3  Lindsay  v.  People,  63  N.  Y.  143. 


CONFESSIONAL  EVIDENCE.  137 

innocent  motive,  are  questions  for  the  determination  of  the  jury- 
under  all  the  evidence  in  the  cause.^ 

And  where  the  testimony  discloses  circumstances  explaining 
or  excusing  flight,  which  consist  with  the  innocence  of  the 
defendant  of  the  crime  charged,  the  jury  should  be  directed  to 
consider  the  same  in  connection  with  the  presumption  arising 
from  flight,  and  determine  how  far  they  tend  to  rebut  such 
presumption.^ 

Such  peculiarities  of  conduct  as  we  have  been  considering 
are  of  themselves  entitled  to  little  weight  and  are  not  sufficient 
to  warrant  conviction.^  In  the  endeavor  to  discover  truth,  no 
evidence  should  be  excluded ;  but  a  case  must  be  scanty  of  evi- 
dence which  demands  that  importance  should  be  attached  to 
circumstances  so  fallacious  as  the  acts  in  question.  It  has  been 
observed,  that  if  the  evidence  without  them  is  sufficient,  this 
species  of  evidence  is  unnecessary,  and  that  if  not,  then  the  in- 
ference, from  language,  conduct,  and  behavior,  seems  not 
of  sufficient  weight  to  give  any  conclusive  effect  to  the  other 
proofs.^ 

1  Elmore  v.  State,  98  Ala.  12  ;  State  v.  Moodj-.  50  la.  443. 

2  State  V.  Mallon,  75  Mo.  355  ;  State  v.  King,  78  Mo.  555.     And  see  Whart. 
Cr.  Ev.  §  750. 

3  Greenfield  v.  People,  85  N.  Y.  75  ;  People  v.  Myers,  2  Hun,  6  ;  State  v. 
Palmer,  65  N.  H.  216  ;  Elmore  v.  State.  98  Ala.  12;  Murrell  v.  State.  4G  Ala.  89. 

*  Per  Shaw,  C.  J. ,  in  Webster's  Case,  supra. 


!1 


CHAPTER  VII. 

THE  SUPPRESSION,  DESTRUCTION,  FABRICATION,    AND  SIMULA- 
TION  OF  EVIDENCE. 

It  is  a  maxim  of  law,  that  omnia prcesuinuntur  contra  spoli- 
atorem^  and  the  suppression  or  destruction  of  pertinent  evidence 
is  always  therefore  deemed  a  prejudicial  circumstance  of  great 
weight ;  ^  for  as  no  action  of  a  rational  being  is  performed  with- 
out a  motive,  it  naturally  leads  to  the  inference  that  such  evi- 
dence, if  it  Avere  produced,  would  operate  unfavorably  to  the 
party  in  whose  power  it  is  to  produce  it,  and  who  withholds  it, 
or  has  wilfully  deprived  himself  of  the  power  of  producing  it. 
The  presumption  that  a  man  will  do  that  which  tends  to  his 
obvious  advantage,  if  he  possesses  the  means,  supplies  a  most 
important  test  for  judging  of  the  comparative  weight  of  evi- 
dence.^ All  evidence  is  to  be  weighed  according  to  the  proof 
which  it  Avas  in  the  power  of  one  party  to  have  produced,  and 
in  the  poAver  of  the  other  to  have  contradicted.^  A  party  may 
not  always  be  compellable  to  produce  evidence  against  himself, 
but  if  it  be  proved  that  he  is  in  possession  of  a  deed  or  other 
evidence,  which,  if  produced,  Avould  decide  a  disputed  point, 
his  omission  to  produce  it  would  warrant  a  strong  presumption 
to  his  disadvantage.* 

In  an  action  against  a  railway  company  for  damages  for 
killing  stock,  the  facts  in  the  matter  in  dispute  being  peculiarly 
Avithin  the  knowledge  of  the  defendant,  and  it  having  it  in  its 
power  to  shoAV  by  its  engineer  Avhat  they  Avere,  its  failure  to 
produce  him  as  a  Avitness  might  reasonably  raise  an  inference 
that  his  testimony  Avould  operate  against  the  defendant.* 
Where  a  Avoman  Avho  had  sued  a  railway  company  for  damages 
for  personal  injuries  Avas  absent  on  the  trial,  the  jury  were  in- 

1  Miller  v.  People,  39  111.  457.  2  starkie  (10th  Am.  Ed.)  846. 

s  See  observations  of  Lord  Mansfield,  in  Blatch  v.  Archer,  Cowp.  65. 
*  Per  Lord  Mansfield,  in  Roe  dem.  Haldane  v.  Harvey,  Burr.  2484. 
«  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis,  54  Fed.  481. 
138 


n\ 


THE  FABRICATION  AND  SIMULATION  OF  EVIDENCE.       139 

structed  that  her  absence  was  a  circumstance  to  be  considered, 
and  if  not  explained,  must  be  taken  as  a  circumstance  against 
her,  and  as  indicating  that  her  evidence  would  have  tended  to 
weaken  her  case ;  that  it  was  her  duty  to  be  present,  and  give 
testimony  in  her  own  behalf,  if  physically  and  mentally  able 
to  do  so,  and  that  if  she  were  absent  when  able  to  be  present, 
the  jury  might  consider  that  as  evidence  tending  to  impeach 
the  good  faith  of  her  claim.  This  charge  was  affirmed  and 
pronounced  clear  and  explicit  by  the  Supreme  Court  on  review.^ 
In  the  great  case  of  Armoriy  v.  Delamirie,  a  chimney- 
sweeper having  found  a  jewel,  took  it  to  a  jeweller  to  ascertain 
its  value,  who,  having  removed  it  from  the  socket,  gave  him 
three-halfpence,  and  refused  to  return  it.  The  friends  of  tlie 
tinder  encouraged  him  to  bring  an  action  against  the  jeweller  ; 
and  the  Lord  Chief  Justice  Pratt  directed  the  jury,  that  unless 
the  defendant  produced  the  jewel,  and  showed  it  not  to  be  of  the 
finest  water,  they  should  presume  the  strongest  against  him, 
and  make  the  value  of  the  best  jewels  the  measure  of  their 
damages.2  In  an  action  of  trover  for  a  diamond  necklace  which 
had  been  unlawfully  taken  out  of  the  owner's  possession,  and 
some  of  the  diamonds  were  seen  shortly  afterwards  in  the 
defendant's  possession,  and  he  could  give  no  satisfactory  account 
how  he  came  by  them,  the  jury  Avere  directed  to  presume  that 
the  whole  set  of  diamonds  had  come  to  the  defendant's  hands, 
and  that  the  fuU  value  of  the  whole  was  the  proper  measure  of 
damages.^  In  an  early  English  case  which  has  been  often  cited,* 
it  Avas  found  by  a  special  verdict  that  the  testator  made  his 
will  and  gave  the  premises  in  question  to  the  plaintiff  in  error, 
but  afterwards  made  another  will  different  from  the  former, 
but  in  what  particular  did  not  appear.  The  court  decided  that 
the  devisee  under  the  first  will  was  entitled  against  the  heir-at- 
law.  But  Lord  Mansfield  said  that  in  case  the  defendant  had 
been  proved  to  have  destroyed  the  last  will  it  would  have  been 
good  ground  for  the  jury  to  find  a  revocation.  On  an  eject- 
ment involving  the  title  to  large  estates  in  Ireland,  the  question 
being  whether  the  plaintiff  was  the  legitimate  son  of  Lord  Alt^ 

1  Cole  V.  Lake  Shore  &  M.  S.  Ry.  Co.,  95  Mich.  77. 
'  1  Sm.  L.  C,  631.  And  see  Rex  v.  Lord  Melville,  29  St.  Tr.  1457. 
3  Mortimer  v.  Craddock,  12  L.  J,  N.  S.  166. 

*  Harvvood  v.  Goodright,  Cowp.  87.     See  3  Russ.  on  Crimes  (9th  Am.  Ed.), 
218  ;  Starkie  on  Ed.  (10th  Am.  Ed.)  847. 


140         THE  SUPPRESSION,  DESTRUCTION,  FABRICATION, 

ham,  and  therefore  prior  in  right  to  the  defendant,  who  was  his 
brother,  it  w^as  proved  that  the  defendant  had  procured  the 
plaintiff,  when  a  boy,  to  be  kidnapped  and  sent  to  America, 
and  on  his  return,  fifteen  years  afterwards,  on  occasion  of  an 
accidental  homicide,  had  assisted  in  an  unjust  prosecution 
against  him  for  murder  :  it  was  held  that  these  circumstances 
raised  a  violent  presumption  of  the  defendant's  knowledge  of 
title  in  the  plaintiff  ;  and  the  jury  were  directed  that  the  sup- 
pressor and  the  destroyer  were  to  be  considered  in  tlie  same 
light  as  the  law  considers  a  spoliator,  as  having  destro3^ed  the 
proper  evidence ;  that  against  him  defective  proof,  so  far  as  he 
had  occasioned  such  defect,  must  be  received,  and  everything 
presumed  to  make  it  effectual ;  and  that  if  they  thought  the 
plaintiff  had  given  probable  evidence  of  his  being  the  legitimate 
son  of  Lord  Altham,  the  proof  might  be  turned  on  the  defend- 
ant, and  that  they  might  expect  satisfaction  from  him  that  his 
brother  died  without  issue.^  On  a  bill  filed  against  a  defendant 
who  had  destroyed  a  deed  by  which  the  plaintiff  claimed 
under  certain  limitations  a  real  estate,  secondary  evidence  was 
given  of  the  limitations  of  the  deed  ;  but  the  evidence,  as  the 
Avitnesses  gave  it,  Avas  of  limitations,  which  could  not  legally 
take  effect,  being  of  a  term  of  years  after  an  indefinite  failure 
of  issue  :  Sir  Joseph  Jekyll,  the  Master  of  the  Rolls,  said  that 
as  against  the  man  who  had  destroyed  the  instrument  which 
would  have  shoAvn  what  the  rights  of  the  plaintiff  were,  he 
would  presume  even  Avhat  tlie  plaintiff  had  not  proved,  that  the 
limitation  was  to  take  place  after  the  failure  of  issue  in  the  life- 
time of  a  person  then  in  being.^ 

The  foregoing  illustrations  of  the  rule  of  evidence  under  con- 
sideration are  not  the  less  pertinent,  because  they  arose  in  civil 
cases,  since  the  rules  of  evidence  are  the  same  in  all  cases, 
whether  civil  or  criminal ;  and  no  inconsiderable  proportion  of 
the  criminal  trials  which  occur  present  examples  of  its  practical 
bearing  and  effect.^ 

If  evidence  within  the  power  of  the  defendant  and  inacces- 

1  Craig  on  dem.  of  Annesley  v.  Earl  of  Anglesea,  17  St.  Tr.  1416.  And  see 
the  Tracy  Peerage,  11  C.  &  F.  154  ;  Clunnes  v.  Pezzey,  1  Campb.  Rep.  8 ; 
Lawton  v.  Sweeny,  8  Jurist,  964  ;  1  Greenleaf's  L.  of  Ev.  §  37  ;  and  see  tlie 
observations  of  Campbell,  L.  C.  J.,  in  Reg.  v.  The  Midland  Railway  Com- 
pany, 20  L.  Mag.  M.  C.  145. 

2  Dalston  v.  Cots  worth,  1  P.  Wms.  731. 

3  Rex  V.  De  la  Motte,  21  St.  Tr.  810  ;  Rex  v.  Burdett,  ut  supra. 


AND  SIMULATION  OF  EVIDENCE.  141 

sible  to  the  State  be  withheld  by  the  defendant,  the  jury  may 
infer  that  if  produced  it  would  be  against  the  defendant. ^  Every 
man  will  do  what  he  can  to  shield  himself  from  the  disOTace  of 
a  conviction  of  crime,  and  the  burden  of  punishment.  "When- 
ever, therefore,  a  fact  is  shown  which  tends  to  prove  crime 
upon  a  defendant,  and  any  explanation  of  such  crime  is  pecu- 
liarly within  his  knowledge  and  reach,  a  failure  to  offer  an  ex- 
planation must  tend  to  create  a  belief  that  same  exists.^  The 
failure  of  a  man  engaged  in  trade  who  is  found,  under  suspicious 
circumstances,  in  possession  of  stolen  goods,  who  declares  that 
he  knows,  or  has  the  means  of  ascertaining,  the  person  from 
whom  he  received  them,  and  who  transferred  to  him  possession 
in  a  manner  out  of  the  ordinary  course  of  business,  to  take  any 
steps  to  point  out  such  person  is  a  potent  fact  from  which  a  jury 
could  reasonably  infer  guilt.^  And  where,  on  the  trial  of  an 
indictment  for  murder,  the  testimony  of  the  prisoner's  ^^^f e,  who 
Avas  an  eyemtness  to  the  occurrence,  was  excluded  on  the 
objection  of  the  prisoner's  counsel,  it  was  held  that  the  jury 
had  a  right  to  infer  that  her  evidence  would  not  have  been 
favorable  to  the  prisoner.^ 

On  the  other  hand,  there  is  no  rule  of  law  that  requires,  in 
cases  of  burglary  or  larceny,  based  on  circumstantial  evidence, 
that  the  person  who  last  had  innocent  possession  of  the  stolen 
property  must  be  examined  by  the  State,  and  that  the  failure 
to  examine  such  witness  creates  every  presumption  favorable 
to  the  innocence  of  the  defendant.^ 

Before  the  absence  of  evidence  can  affect  the  accused,  it  must 
appear  that  there  is  evidence  that  would  elucidate  the  matter 
in  dispute,  and  that  it  is  peculiarly  within  the  knowledge  of  the 
accused ;  then  if  he  is  pressed  by  the  force  of  circumstantial 
evidence  and  does  not  produce  the  evidence  in  his  power,  it 
may  afford  a  strong  presumption  against  him.  He  is  not 
bound  to  produce  those  who  by  possibility  may  have  knowledge 
on  the  subject  to  avoid  a  presumption  against  him.  It  is  not 
those  who  are  proved  to  be  so  circumstanced  as  to  justify  the 
conclusion   that   they  must  have  knowledge  which,  when  di 

1  State  V.  Rodman,  63  la.  456. 

2  State  V.  Grehe,  17  Kan.  458  ;  Heath  v.  Waters,  40  Mich.  457. 

3  Adams  v.  State,  53  Ala.  379. 

4  People  V.  Hovey,  93  N.  Y.  554.     See  also  Gordon  v.  People,  33  N.  Y.  508. 

5  White  V.  State,  73  Ala.  195. 


142         THE  SUPPEESSION,  DESTRUCTION,  FABRICATION, 

vulged,  would  throw  light  on  the  subject.^  And  the  rule  of 
evidence  under  consideration  does  not  apply  when  the  evidence 
withheld  is  of  no  higher  degree  than  that  introduced,  and  is 
not  explanatory  of  any  fact  left  in  uncertainty,  but  is  merely 
cumulative.^ 

That  one  who  has  knowledge  of  material  facts  is  not  pro- 
duced as  a  witness,  is  not  presumptive  evidence  against  the 
defendant  where  such  person  was  especially  accountable  to  the 
prosecution.^  This  principle  was  affirmed  in  a  very  recent  case 
where  the  witness  was  present  in  court  and  subject  to  the  call 
of  either  party.'' 

Amongst  the  most  forcible  of  presumptive  indications  may 
be  mentioned  all  attempts  to  pollute  or  disturb  the  current  of 
truth  and  justice,  or  to  prevent  a  fair  and  impartial  trial,  by 
endeavors  to  intimidate,  suborn,  bribe,  or  otherwise  tamper 
with  the  prosecutor,  or  the  witnesses,  or  the  officers  or  min- 
isters of  justice,  the  concealment,  suppression,  destruction,  or 
alteration  of  any  article  of  real  evidence ;  any  of  which  acts 
clearly  brought  home  to  the  prisoner,  or  his  agents,  are  of  a 
most  prejudicial  eifect,  as  denoting  on  his  part  a  consciousness 
of  guilt,  and  a  desire  to  evade  the  pressure  of  facts  tending  to 
establish  it.''  On  a  trial  for  larceny  it  may  be  shown  that  the 
accused  had  threatened  a  witness  of  the  State  in  order  to  pre- 
vent him  from  testifying  in  the  case ;  and  the  fact  that  he  had 
been  acquitted  on  a  charge  of  intimidating  the  same  witness  is 
no  bar  to  the  admissibility.  The  record  of  acquittal  may  go  to 
the  jury  with  other  evidence  to  be  taken  for  what  it  is  worth.^ 
And  in  an  action  for  slander  it  was  held  that  testimony  tend- 
ing to  prove  an  attempt  by  the  defendant  to  prevent  the  at- 
tendance on  the  trial  of  a  witness  in  behalf  of  the  plaintiff,  was 
admissible  against  the  defendant  as  evidence  tending  to  con- 
firm the  witness  whose  testimony  was  thus  sought  to  be  sup- 
pressed.'   In  the  same  case  evidence  was  admitted  tending  to 

1  People  V.  McWhorter,  4  Barb.  438. 

2  Haynes  v.  McRae,  101  Ala.  318. 

'  State  V.  Rosier,  55  la.  517 ;  People  v.  Sweeney,  41  Hun,  333 ;  State  v. 
Cousins,  50  la.  250. 

*  Haynes  v.  McRae,  supra.  See  also  PoUak  v.  Harmon,  94  Ala.  420  ; 
Bates  V.  Morris,  101  Ala.  282. 

6  Rex  V.  Crossfield,  26  St.  Tr.  217  ;  Rex.  v.  Donellan,  Rex  v.  Donnall,  Reg. 
V.  Palmer,  infra.  ^  State  v.  Baden,  42  La.  Ann.  295. 

^  Carpenter  v.  WiUey,  64  Vt.  212.     And  see  Kirkaldie  v.  Paige,  17  Vt.  256. 


AND  SIMULATION  OF  EVIDENCE.  143 

shcxw  an  attempt  by  the  defendant  to  manufacture  evidence 
with  which  to  impeach  the  plaintiff's  character.  He  had  said 
to  the  witness,  "  If  you  Ivnow  anything  about  it  that  will  help 
me,  it  will  put  $'2o  into  your  pocket."  On  an  indictment  for 
larceny  it  was  shown  that  the  defendant  went  to  the  prosecut- 
ing witness  and  attempted  to  bribe  him  to  swear  that  certain 
tracks  had  no  connection  with  the  larceny.^  In  a  civil  case 
proof  of  the  fabrication  of  evidence  of  the  payment  of  money 
was  considered  damaging  to  the  plaintiff's  case.^ 

But  legal  experience  has  shown  that  false  evidence  is  some- 

1  Kimbrough  v.  State,  76  Ga.  TST.  See  also  Williams  v.  State,  23  Tex. 
Crim.  App.  497.  Mr.  Evans  (3  Pothier,  by  Evans,  337)  observes  that  one 
of  the  most  difficult  points  in  the  Douglas  cause  arose  from  the  fact  that 
Sir  John  Stewart  had  fabricated  several  letters  as  received  from  the  surgeon, 
La  Marre  ;  and  cites  the  following  observations  of  Mr.  Stewart  on  the 
subject : — 

"  I  have  been  accustomed  to  thiak,  that  in  judging  upon  evidence,  a 
matter  of  such  infinite  importance  in  the  constitution  and  jurisprudence 
of  every  well-regulated  State,  there  were  certain  rules  established,  which 
in  every  court,  and  in  every  country,  were  received  as  most  invaluable 
guides  for  the  discovery  of  truth.  For  instance,  when  it  appeared  that  on 
the  one  side  there  was  forgery  and  fraud  in  some  material  parts  of  tlie 
evidence,  and  especially  when  that  forgery  could  be  traced  up  to  its  source, 
and  discovered  to  be  the  contrivance  of  the  very  person  whose  guilt  or 
innocence  was  the  object  of  inquiry  ;  in  such  a  case  I  have  always  under- 
stood it  to  be  an  established  rule,  that  tlie  whole  of  the  evidence  on  that 
side  of  the  question  must  be  deeply  affected  by  a  deliberate  falsehood  of 
this  nature. 

"  The  natural  and  necessary  effect  of  such  a  practice  upon  the  minds  of 
judges  possessed  of  discernment  and  candor,  is  to  make  them  extremely 
suspicious  of  all  the  evidence  tending  to  the  same  conclusion  with  the  forged 
evidence.  Parol  testimony  in  support  of  it  will  be  little  regarded  :  the 
forgery  of  the  written  evidence  contaminates  the  testimony  of  the  witnesses 
in  favor  of  the  party  who  has  made  use  of  that  forgery  ;  and  nothing  will 
gain  credit  on  tliat  side,  but  either  clear  and  conclusive  written  evidence, 
free  from  suspicion,  or  the  testimony  of  such  a  number  of  respectable,  dis- 
interested, and  consistent  witnesses,  speaking  to  decisive  and  circumstantial 
facts  as  leaves  no  room  to  doubt  of  the  certainty  of  their  knowledge,  and 
the  ti'uth  of  their  assertions. 

"  On  the  other  hand,  the  proof  of  a  forgery,  such  as  has  been  described, 
must  also  have  the  effect  to  gain  a  more  ready  admission  to  the  evidence 
of  the  other  party.  If  that  evidence  be  consistent,  if  it  be  established  by 
the  concurring  testimony  of  a  crowd  of  witnesses,  and  supported  by  various 
articles  of  written  and  unsuspected  evidence,  the  bias  of  a  fair  mind  will 
be  totally  in  favor  of  the  party  producing  such  authorities,  and  against  that 
which  had  been  obliged  to  have  recourse  to  the  forged  evidence."  See 
Stark,  on  Ev.  (10th  Am.  Ed.)  847,  n. 

2  Winchell  v.  Edwards,  57  111.  41. 


14i         THE  SUPPRESSION,  DESTRUCTION,  FABRICATION, 

times  resorted  to  for  the  purpose  of  proving  facts  that  are  triie.^ 
Perhaps  the  most  notable  case  of  this  kind  is  that  cited  by  Sir 
Edward  Coke  of  an  uncle  who  was  hanged  for  the  murder  of 
his  niece,  w^ho  produced  on  the  trial  a  child  much  like  the  niece 
in  person  and  years,  but  who  turned  out  not  to  be  the  true 
child.  It  afterwards  appeared  that  the  niece  was  alive  and  in 
hiding.2  And  so  it  has  been  held  error  to  charge  the  jury  that 
Avhere  a  party  in  a  cause  attempts  to  manufacture  testimony,  the 
jury  are  justified  and  warranted  in  presuming  that  his  case  is  not 
w^ell  founded,  while  the  testimony,  offered  on  behalf  of  a  party 
whom  the  jury  find  to  have  tampered  with  witnesses  should 
be  carefully  and  even  suspiciously  scrutinized,  yet  that  testi- 
mony is  not  to  be  wholly  disregarded  and  set  aside,  and  the 
verdict  be  left  to  rest  on  a  presumption  arising  from  the  party's 
misconduct,  however  flagrant,  and  however  clearly  proved.^ 
And,  as  has  been  well  said,  the  denial  of  a  known  fact,  and 
the  attempt  to  conceal,  destroy,  or  prevent  evidence  of  the 
minor's  title  to  property,  or  which  is  calculated  to  prove  guilt, 
may,  and  does,  often  occur  from  fear  of  a  groundless  charge, 
based  upon  suspicious  circumstances,  or  a  covetous  desire  to 
retain  property  for  which  one  has  paid,  under  the  supposition 
that  he  w^as  acquiring  a  honajide  title,  but  which  he  afterwards 
finds  belongs  to  another.^  If  the  evidence  in  regard  to  the 
alleo;ed  falsehood  or  falsification  be  doubtful,  it  is  entitled  to  no 
weight.  To  be  entitled  to  any  force,  its  truth  should  be  estab- 
lished beyond  all  question  or  cavil.^ 

Perhaps  in  no  case  have  circumstances  of  this  kind  held  with 
such  fatal  effect  as  in  that  of  Donellan,  who  was  convicted  of 
the  murder  of  Sir  Theodosius  Boughton  by  poison.  The  prisoner, 
after  having  administered  the  fatal  draught  in  the  form  of 
medicine,  rinsed  out  the  phial  which  had  contained  it,  and 
Avhen  that  fact  was  stated  before  the  coroner,  he  was  observed 
to  check  the  Avitness  by  pulling  her  sleeve.  In  his  charge  to 
the  jury,  Mr.  Justice  Buller  laid  great  stress  upon  that  circum- 
stance. "Was  there  anything  so  likely,"  said  the  learned 
judge,  "  to  lead  to  a  discovery  as  the  remains,  however  small 

1  1  Phil.  Ev.  448. 

23  Inst.  333.  See  3  Russ.  on  Crimes  (9th  Am.  Ed.),  318.  See  also  the 
Douglas  Peerage  Case,  3  Pothier,  by  Evans,  337,  and  the  remarks  of  Mr. 
Evans  thereon.  ^  Heslop  v.  Heslop,  82  Pa.  St.  537. 

4  See  opinion  of  the  court  in  Beck  v.  State,  44  Tex.  430.  And  see  3 
Greenl.  on  Ev.  §  34.  s  state  v.  Williams,  27  Vt.  724. 


AND  SIMULATION  OF  EVIDENCE.  I45 

they  might  have  been,  of  medicine  in  the  bottle  ?  But  that  is 
destroyed  by  the  prisoner.  In  the  moment  he  is  doing  it,  he 
is  found  fault  with.  What  does  he  do  next  ?  He  takes  the 
second  bottle,  puts  water  into  that,  and  rinses  it  also.  He  is 
checked  by  Lady  Boughton,  and  asked  what  he  meant  by  it — 
why  he  meddled  with  the  bottles.  His  answer  is,  he  did  it  to 
taste  it ;  but  did  he  taste  the  first  bottle  ?  Lady  Boughton 
swears  he  did  not.  The  next  thing  he  does,  is  to  get  all  the 
things  sent  out  of  the  room ;  for  when  the  servant  comes  up, 
he  orders  her  to  take  away  the  bottles,  the  basin,  and  the  dirty 
things.  He  puts  the  bottles  into  her  hand,  and  she  was  going 
to  carry  them  away,  but  Lady  Boughton  stopped  her.  Why 
were  all  these  things  to  be  removed  ?  Why  was  it  necessary 
for  the  prisoner,  who  was  fully  advertised  of  the  consequence 
by  Lady  Boughton,  to  insist  upon  having  everything  removed  ? 
Why  should  he  be  so  solicitous  to  remove  everything  that 
might  lead  to  a  discovery  P  As  to  the  conduct  of  the  prisoner 
before  the  coroner,  Lady  Boughton  had  mentioned  the  circum- 
stance of  the  prisoner's  rinsing  out  the  bottle,  one  of  the  cor- 
oner's jury  swears  that  he  saw  him  pull  her  by  the  sleeve. 
Why  did  he  do  that  ?  If  he  was  innocent,  would  it  not  be  his 
wish  and  anxious  desire,  as  he  expresses  in  his  letter,  that  all 
possible  inquiry  should  be  made?  What  passes  afterwards? 
When  they  get  home,  the  prisoner  tells  his  wife  that  Lad}'^ 
Boughton  had  given  this  evidence  unnecessarily  ;  that  she  was 
not  obliged  to  say  anything  but  in  answer  to  questions  that 
were  put  to  her,  and  that  the  question  about  rinsing  out  the 
bottles  was  not  asked  her.  Did  the  prisoner  mean  that  she 
should  suppress  the  truth  ?  that  she  should  endeavor  to  avoid 
a  discovery  as  much  as  she  could  by  barely  saying  Yes  or  No 
to  the  questions  that  were  asked  her,  and  not  disclose  the 
whole  truth  ?  If  he  was  innocent,  how  could  the  truth  affect 
him  ?  but  at  that  time  the  circumstance  of  rinsing  out  the 
bottles  appeared  even  to  him  to  be  so  decisive  that  he  stopped 
her  on  the  instant,  and  blamed  her  afterwards  for  having 
mentioned  it.  All  these,"  said  the  learned  judge,  "  are  very 
strong  facts  to  show  what  was  passing  in  the  prisoner's  own 
mind."  A  boatman  was  convicted  of  stealing  rum  which  had 
been  delivered  to  his  master,  a  carrier  by  canal,  for  conveyance 
from  Liverpool  to  Birmingham.  The  carrier's  agent  at  Liver^ 
1  Gurney's  Rep. ,  ut  supra. 


140         THE  SUPPRESSION,  DESTRUCTION,  FABRICATION, 

pool  had  taken  a  sample  of  the  spirit  and  tested  its  strength  ; 
and  upon  delivery  at  its  place  of  destination,  the  spirit  was 
found  to  be  under  proof,  and  the  portion  abstracted  had  been 
replaced  with  water.  The  carrier's  clerk,  on  the  complaint  of 
the  consignee,  went  to  the  boat  where  the  prisoner  was,  to  re- 
quire explanation  ;  but  as  soon  as  he  had  stepped  into  it,  the 
prisoner  pushed  him  back  upon  the  wharf  and  forced  the  boat 
into  the  middle  of  the  canal,  where  he  broke  three  jars,  and 
emptied  their  contents,  which  by  the  smell  were  proved  to  be 
rum,  into  the  canal. ^ 

Other  facts  of  the  same  kind  are  the  common  cases  of  the 
obliteration,  effacing,  or  otherwise  removing  marks  of  owner- 
ship or  identity  from  plate,  linen,  or  other  articles  of  property, 
or  of  stains  of  blood  or  other  matter  from  the  person  or  dress 
of  the  accused,  or  the  suggestion  or  insinuation  of  false,  ground- 
less, or  deceptive  hypotheses  or  explanations,  in  order  to  neu- 
tralize or  account  for  adverse  facts  or  aj^pearances.  It  is  on  the 
principle  of  these  cases  that,  by  statute  in  England  if  any  person 
on  board  a  vessel  which  is  chased  by  an  officer  of  the  preventive 
service  shall  throw  overboard,  stave,  or  destroy  any  part  of 
the  freight,  the  vessel  is  declared  to  be  forfeited ;  and  that 
goods  liable  to  duty  concealed  on  board  any  vessel  are  also 
declared  to  be  forfeited ;  ^  and  that  other  similar  statutable 
presumptions  have  been  created ;  and  that  whenever  absent 
witnesses  are  so  mixed  up  with  transactions  before  the  court 
as  to  give  rise  to  comments  on  their  not  being  present,  it  is 
the  common  practice  to  prove  the  cause  of  their  non-attend- 
ance, as,  for  instance,  death,  illness,  or  having  quitted  the 
country.^ 

Another  fact  of  this  kind  is  the  attempt  to  prevent  j)ost 
mortem  examination  by  the  premature  interment  of  human 
remains,  under  the  pretext  that  it  is  rendered  necessary  by  the 
state  of  the  body,  since  it  cannot  but  be  known  that  such 
examination  will  always  furnish  important,  and  generally  con- 
clusive, evidentiary  matter  as  to  the  cause  of  death.*  And  it 
is  a  reasonable  inference,  where  a  homicide  has  been  committed, 
and  the  body  concealed,  that   the   party  who  concealed  the 

1  Rex  V.  Thomas,  Warwick  Spr.  Ass.,  1846,  coram  Mr.  Justice  Bosanquet. 

2  St.  8  &  9  Vict.  c.  7,  §§  5,  6,  29. 

8  Per  Pollock,  L.  C.  B.,  in  Cowper  v.  French,  Exch.  N.  P.,  July  10, 1850. 
*  Rex  V.  Donellan,  Rex  v.  Donnall,  Rex  v.  Palmer,  infra. 


AND  SIMULATION  OF  EVIDENCE.  14f 

body  committed  the  crime.^  In  this  connection  may  be  men- 
tioned the  concealment  of  death  by  the  destruction  or 
attempted  destruction  of  human  remains.^ 

But  in  this  case  the  presumption  of  criminality  results  from 
the  act  of  concealment  rather  than  from  the  nature  of  the 
means  employed,  however  revolting,  which  must  be  regarded 
only  as  incidental  to  the  fact  of  concealment,  and  not  as 
aggravating  the  character  and  tendency  of  the  act  itself. 
Where  a  prisoner  tried  for  murder  admitted  that  he  had  cut 
off  the  head  and  legs  from  the  trunk  of  a  female,  and  concealed 
the  remains  in  several  places,  but  alleged  that  her  death  had 
taken  place  by  accident  while  she  was  in  his  company,  and 
that  in  the  alarm  of  the  moment,  and  to  prevent  suspicion,  he 
had  determined  to  conceal  the  death.  Lord  Chief  Justice 
Tindal  told  the  jury  that  the  concealment  of  death  under  such 
circumstances  had  always  been  considered  to  be  a  point  of  the 
greatest  suspicion,  but  that  this  evidence  must  be  received 
with  a  certain  degree  of  modification,  and  especially  in  a  case 
where  the  feelings  might  be  excited  by  the  singular  means  of 
concealment  adopted  by  the  prisoner ;  that  this  point  of  evi- 
dence was  therefore  for  the  consideration  of  the  jury,  and  that 
it  was  for  them  to  judge  how  far  it  was  a  proof  of  the  prison- 
er's guilt ;  but  the  mere  general  fact  of  the  concealment,  added 
the  learned  judge,  is  to  be  considered,  and  not  the  circum- 
stances under  which  it  took  place.^ 

Other  such  facts  are  the  officious  affectation  of  grief  and 
concern  as  an  artifice  to  prevent  or  avert  suspicion,*  false  rep- 
resentations as  to  the  state  of  the  party's  health,  or  the  utter- 
ance of  obscure  or  mysterious  predictions  or  allusions,  the 
pretence  of  supernatural  dreams,  noises,  or  other  omens  or  inti- 
mations, calculated  to  prepare  the  connections  for  the  event  of 
sudden  death,  and  to  diminish  the  surprise  and  alarm  which 
naturally  follow  such  an  event.  A  woman  who  was  convicted 
of  murder,  about  a  month  before  the  catastrophe  told  the 
mother  of  an  infant  child  whom  she  poisoned,  as  well  as  her 

1  State  V.  Dickson,  78  Mo.  438.     And  see  Burrill,  Circ.  Ev.  83. 

2  Rex  V.  Gardelle,  4  Celebrated  Trials,  400  ;  Rex  v.  Cook,  infra ;  Reg.  v. 
Good,  Sess.  Pap.,  May,  1848. 

8  Rex  V.  Greenacre,  C.  C.  Court,  April,  1837,  infra  ;  and  see  Prof.  Webster's 
case,  Bemis's  Report,  ut  siqyra,  5  Cush.  295. 

*  Rex  V.  Blandy,  ut  supra  ;  Rex  v.  Patch,  infra. 


148         THE  SUPPRESSION,  DESTRUCTION,  FABRICATION, 

own  husband  and  child,  that  she  had  had  her  fortune  told,  and 
that  within  six  weeks  three  funerals  would  go  from  her  door, 
those  of  her  husband  and  son  and  the  child  of  the  person  she 
was  addressing.^ 

The  fabrication  of  simulated  facts  and  appearances  calcu- 
lated to  create  alarm,  or  otherwise  to  give  a  delusive  tendency 
and  interpretation  to  inculpatory  facts,  is  an  artifice  fre- 
quently resorted  to  for  the  avoidance,  neutralization,  or  ex- 
planation of  circumstances  naturally  presumptive  of  guilt; 
the  resort  to  which  is  of  the  most  prejudicial  criminative  ten- 
dency, inasmuch  as  it  necessarily  implies  an  admission  of  their 
truth,  and  a  consciousness  of  the  inculpatory  effect,  if  uncon- 
tradicted or  unexplained,  of  the  facts  which  it  thus  seeks  to 
divest  of  their  natural  significancy.  As  instances  of  such  sim- 
ulated facts  may  be  mentioned  the  pretence  of  having  par- 
taken of  a  poisonous  draught  which  has  caused  death  \^  the  self- 
infliction  of  slight  wounds  to  raise  the  inference  that  the 
offender  had  himself  been  the  object  of  deadly  attack ;  ^  the 
attempt  to  fix  guilt  or  suspicion  upon  others  by  the  groundless 
suggestion  of  malicious  feelings ;  ^  the  placing  of  a  razor,  pis- 
tol, or  other  weapon  in  the  hand  of  or  near  to  a  dead  body  to 
lead  to  the  notion  of  suicide,  and  many  other  such  acts.  But 
cunning  is  "  a  sinister  or  crooked  wisdom,"  and  not  unfrequently 
the  very  means  employed  to  prevent  suspicion  lead  to  the  dis- 
covery of  the  real  truth.  A  murderer,  to  simulate  the  appear- 
ance of  suicide,  placed  a  razor  in  the  left  hand  of  a  right- 
handed  woman.^  A  man  was  found  shot,  and  his  own  pistol 
lying  near  him ;  but,  although  no  person  had  been  seen  to 
leave  the  house,  the  suspicion  of  suicide  Avas  negatived  by  the 
fact  that  the  ball  was  too  large  to  have  entered  the  pistol.** 

A  recent  case  affords  an  appropriate  illustration  in  this  con- 
nection. The  defendant,  indicted  for  murder,  told  the  per- 
sons who  gathered  at  the  scene  on  the  night  of  the  homicide, 
that  the  deceased  came  to  her  death  by  her  clothes  accident- 
ally catching  fire  while  she  (deceased)  was  asleep,  and   that 

1  Rex  V.  Holroyd,  4  Cel.  Tr.  167.  And  see  Rex  v.  Donellan  and  Rex  v. 
Donnall,  infra. 

2  Rex  V.  Nairn  and  Ogilby,  19  St.  Tr.  1284  ;  Rex  v.  Wescombe,  Exeter 
Summ.  Ass.,  1839.  Reg.  v.  Bolani,  Durham  Summer  Ass.,  1839. 

*  Rex  V.  Patch,  lit  supra. 

6  Rex  V.  Fitter,  Warwick  Summer  Ass.,  1834,  coi-am  Mr.  Justice  Taunton. 

«  3  P.  &  F.  Med.  J,  34. 


AND  SIMULATION  OF  EVIDENCE.  I49 

the  defendant,  while  attempting  to  put  out  the  flames,  "  burnt 
one  of  her  hands."'  At  the  inquest  the  defendant  was  com- 
pelled to  unwrap  the  hand  Avhich  she  represented  as  injured, 
and  to  exhibit  it  to  a  physician  present,  and  "  there  was  no 
indication  of  any  burn  whatever  upon  it."  ^ 

A  very  remarkable  case  of  this  kind  is  recorded  in  the  State 
Trials,  which  was  tried  at  Hertford  Assizes,  4  Car.  I.,  before 
Mr.  Justice  Harvey.  A  woman  was  found  dead  in  her  bed 
with  her  throat  cut,  and  a  knife  sticking  in  the  floor.  Several 
persons  of  the  family  who  slept  in  the  adjoining  room  deposed 
that  the  deceased  went  to  bed  with  her  child,  her  husband  be- 
ing absent,  that  the  prisoners  slept  in  the  adjoining  room,  and 
that  no  person  afterwards  came  into  the  house.  The  coroner's 
jury  were  inclined  to  return  a  verdict  of  felo  de  se,  but  suspicion 
being  excited  against  these  individuals,  the  jury,  whose  verdict 
was  not  yet  drawn  up  in  form,  desired  that  the  remains  of  the 
deceased  might  be  taken  up,  and  accordingly,  thirty  days  after 
her  death,  they  were  taken  up,  and  the  jury  charged  the 
prisoners  with  the  murder.  Upon  their  trial  they  were  ac- 
quitted, but  so  much  against  the  evidence,  that  the  judge  let  fall 
his  opinion  that  it  were  better  an  appeal  were  brought  than  so 
foul  a  murder  should  escape  unpunished.  Accordingly  an 
appeal  was  brought  by  the  child  against  his  father,  grand- 
mother, and  aunt,  and  her  husband.  On  the  trial  of  the  appeal 
before  Chief  Justice  Hyde,  the  evidence  adduced  was,  that  the 
deceased  lay  in  a  composed  manner  in  her  bed,  with  the  bed- 
clothes undisturbed,  that  her  child  lay  by  her  side,  that  her 
neck  was  broken,  and  that  her  throat  was  cut  from  ear  to  ear. 
There  was  no  blood  in  the  bed,  except  a  tincture  on  the  bolster 
Avhere  her  head  lay.  From  the  bed's  head  there  was  a  stream 
of  blood  on  the  floor,  which  ran  along  till  it  pounded  in  the 
bendings  of  the  floor,  and  there  was  also  another  stream  of 
blood  on  the  floor  at  the  bed's  foot,  which  pounded  also  on  the 
floor  to  a  very  great  quantity  ;  but  there  was  no  communica- 
tion of  blood  between  these  two  places,  nor  upon  the  bed.  A. 
bloody  knife  was  found  in  the  morning  sticking  in  the  floor, 
at  some  distance  from  the  bed  ;  but  the  point  of  the  knife,  as 
it  stuck,  was  towards  the  bed,  and  the  handle  from  the  bed ; 
and  there  was  the  print  of  the  thumb  and  fingers  of  a  left 
hand.     It  was  beyond  all  question,  from  the  circumstances, 

I  State  V.  Garrett,  71  N.  C,  85. 


150         'rHE  SUPPRESSION,  DESTRUCTION,  FABRICATION, 

that  the  deceased  had  been  murdered,  for  if  she  had  committed 
suicide  by  cutting  her  own  throat,  she  could  not  by  any  pos- 
sibility have  broken  her  own  neck  in  bed.  The  father,  grand- 
father, and  aunt  were  convicted  and  executed.^ 

Two  persons  were  convicted  of  murder ;  and  it  appeared 
that  the  deceased  was  murdered  in  the  night,  and  that  the 
prisoners,  one  of  whom  was  his  niece,  and  the  other  his  servant 
man,  had  given  an  alarm  from  within  the  house  ;  whereas  the 
undisturbed  state  of  the  dew  on  the  grass  on  the  outside 
rendered  it  certain  that  the  parties  implicated  were  domestics.^ 

The  fact  that  the  defendant  tells  a  false  story  as  to  his  where- 
abouts at  the  time  of  the  commission  of  the  crime  with  which  he 
is  charged,  is  a  strong  circumstance  against  him.^  The  defend- 
ant's case  is  often  much  Aveakened  b}^  an  unsuccessful  attempt 
to  prove  an  alihi.  This  result  happens,  not  because  of  any  im- 
plied or  technical  admission  involved  in  undertaking  the  defence, 
but  because  of  fraud  and  subornation  of  perjury  manifested 
in  the  attempt.*  An  cdlhi^  it  has  been  said,  is  not,  in  the  strict 
and  accurate  sense,  a  special  defence,  but  a  traverse  of  the 
material  averment  in  the  indictment,  that  the  defendant  did, 
or  participated  in,  the  particular  act  charged,  and  is  compre- 
hended in  the  general  plea,  "  not  guilty."  ^ 

This  defence  is  frequently  fabricated,  and  is  liable  to  many 
sources  of  fallacy,  which  will  be  more  appropriately  considered 
in  a  subsequent  part  of  this  volume  ;  and  a  learned  judge  has 
said,  that  if  the  defence  turns  out  to  be  untrue,  it  amounts  to  a 
conviction.^  But  it  must  be  borne  in  mind  that  the  unfavor- 
ableness  to  the  accused  resulting  from  the  attempt  to  prove  the 
alihi  by  means  of  fabricated  testimony  consists  in  the  fact  that 
the  accused  is  attempting  to  shield  himself  by  corrupting  the 
administration  of  law,  and  by  relying  upon  what  he  knows  to 
be  without  foundation.'' 

It  must  not  be  overlooked,  however,  that,  such  is  the  weak- 
ness  of   human   nature,   that   there  have   been    cases   where 

1  Rex  V.  Okeman  et  al.  Comp.  10  Harg.  St.  Tr.  App.  2,  29,  and  14  St.  Tr. 
1324.  2  Rex  V.  Jeffreys  &  Swan,  18  St.  Tr.  1194. 

3  People  V.  Riley,  3  N.  Y.  Cr.  R.  374. 

*  Toler  V.  State,  16  Ohio  St.  583. 

6  Allbritton  v.  State,  94  Ala.  76;  Turner  v.  Com.,  86  Pa.  St.  54;  Brice- 
land  V.  Com.,  74  Pa.  St.  463. 

6  Per  Mr.  Justice  Daly,  in  Rex  v.  Killan,  20  St.  Tr.  1085. 

7  Adams  v.  State,  28  Fla.  511. 


AND  SIMULATION  OF  EVIDENCE,  151 

innocence,  under  the  alarm  of  menacing  appearances,  has  fatally 
committed  itself,  by  the  simulation  of  facts  for  the  purpose  of 
evading  the  force  of  circumstances  of  apparent  suspicion,  and 
in  many  cases  of  this  nature  a  false  defence  is  innocently  inter- 
posed under  a  mistake  as  to  dates,  or  the  order  of  events.  In 
other  cases  the  defence  is  true  and  the  evidence  fails  to  establish 
it.i  So  that  the  fact  that  the  evidence  fails  to  establish  the  de- 
fence ought  not  to  have  any  weight  against  the  prisoner  unless 
it  is  established  beyond  all  question  that  his  story  is  a  fabrica- 
tion.* 

When  the  defence  of  an  alibi  fails,  it  is  generally  on  the 
ground  that  the  witnesses  are  disbelieved,  and  the  story  con- 
sidered to  be  a  fabrication  ;  thus,  in  one  case,  two  witnesses 
testified  that  the  prisoner  was  at  his  house  during  the  whole  of 
the  night  of  the  murder  :  the  jury  nevertheless,  in  view  of  all 
the  circumstances,  returned  a  verdict  of  guilty.^  And  from 
the  facility  wath  which  the  defence  is  fabricated,  it  is  com- 
monly entertained  with  suspicion,  and  sometimes,  perhaps, 
unjustly  so.* 

1  See  the  opinion  in  the  case  of  Toler  v.  State,  16  Ohio  St.  583. 

2  State  V.  Ward,  61  Vt.  153.  3  Phipps  v.  State,  3  Cold.  344. 
*  Rex  V.  Robinson,  infra.    See  further,  infra. 


CHAPTER  VIII. 

EXPERTTESTIMONY.  M 

^1 


Section  I. 

Consideration  of  the  Rules  Governing  the  Admission  of  this 
Kind  of  Testimony. 

The  testimony  of  skilled  or  scientific  witnesses  constitutes  a 
very  important  source  of  circumstantial  evidence,  especially  in 
regard  to  the  proof  of  the  corpus  delicti  in  cases  of  suspected 
homicide,  and  in  questions  concerning  the  doli  capax.  Such 
evidence  in  its  details  belongs  to  other  departments  of  science ; 
but  as  the  principles  which  govern  its  reception  and  applica- 
tion fall  exclusively  within  the  province  of  jurisprudence,  some 
general  observations  upon  it  are  therefore  necessary. 

If  it  be  true  that  truth  is  nothing  more  than  a  presumption 
of  the  highest  order,  a  fortiori  is  such  the  case  with  respect  to 
the  testimony  of  skilled  or  scientific  witnesses,  which  not 
unfrequently  presents  a  sequence  of  presumptions  grounded 
upon  conflicting  opinions,  even  with  regard  to  the  actual  state 
of  science.  Such  testimony  is  therefore  of  a  nature  sui  generis^ 
and,  according  to  the  attainments  and  means  of  knowledge  of 
the  witness,  may  be  of  little  moment,  or  deserving  of  entire 
and  undoubting  confidence. 

Science,  moreover,  is  never  final ;  and  new  facts  are  every 
day  found  to  disturb  or  modify  long-established  convictions. 
Thus  Reinsch's  test,  which  had  long  been  confidently 
employed  for  the  separation  of  arsenic,  was  discovered  to 
be  fallacious  when  applied  to  chlorate  of  potass,  and  the 
arsenic  which  was  found  in  the  particular  mixture  had  been, 
set  free  from  the  copper  employed  in  the  experiment.^ 

'  Reg.  V,  Smethurst,  C.  C.  C,  Aug.  1859,  S?ss,  Paper. 
162  "        ' 


EXPERT  TESTIMONY.  I53 

Although,  in  general,  a  witness  cannot  be  asked  what  his 
opinion  upon  a  particular  question  is,  since  he  is  called  for  the 
purpose  of  speaking  as  to  facts  only ;  yet  where  matters  of 
skill  and  judgment  are  involved,  a  person  competent  to  give 
an  opinion  may  be  asked  what  that  opinion  is.^ 

"Many  nice  questions,"  remarked  Lord  Mansfield,  "may 
arise  as  to  forgery,  and  as  to  the  impression  of  seals,  whether 
the  impression  was  made  from  the  seal  itself,  or  from  an  im- 
pression in  wax.  In  such  cases  I  cannot  say  that  the  opinion 
of  seal-makers  is  not  to  be  taken."  And  so  an  engineer  Avas 
allowed  to  testify  what  was,  in  his  opinion,  the  cause  of  a  har- 
bor being  blocked  up.^  Judge  Earl  of  the  Ncav  York  Court  of 
Appeals  has  thus  declared  the  principles  upon  which  this  char- 
acter of  evidence  is  admitted  :  "  Witnesses  who  are  skilled  in 
any  science,  art,  trade,  or  occupation,  may  not  only  testify  to 
facts,  but  are  sometimes  permitted  to  give  their  opinions  as 
experts.  This  is  permitted  because  such  witnesses  are  sup- 
posed, from  their  experience  and  study,  to  have  peculiar  knowl- 
edge upon  the  subject  of  inquiry  which  jurors  generally 
have  not,  and  are  thus  supposed  to  be  more  capable  of  drawing 
conclusions  from  facts,  and  to  base  opinions  upon  them,  than 
jurors  generally  are  presumed  to  be.  Opinions  are  also 
allowed  in  some  cases  where,  from  the  nature  of  the  matter 
under  investigation,  the  facts  cannot  be  adequately  placed  be- 
fore the  jury  so  as  to  impress  their  minds  as  they  impress  the 
minds  of  a  competent,  skilled  observer,  and  where  the  facts 
cannot  be  stated  or  described  in  such  language  as  will  enable 
persons  not  eye-witnesses  to  form  an  accurate  judgment  in 
regard  to  them,  and  no  better  evidence  than  such  opinions  is 
obtainable."  ^ 

In  an  action  for  damages  for  an  alleged  rape,  the  plaintiff 
having  given  birth  to  a  child,  the  defendant  denied  that  he 
was  the  father  of  the  plaintiff's  child,  and  the  plaintiff  testified 
that,  previous  to  the  assault  made  upon  her  by  the  defendant, 
which  resulted  in  her  pregnancy,  she  had  never  had  sexual 

1  Rochester  v.  Chester,  3  N.  H.  349  ;  Forbes  v.  Carothers  et  al,  3  Y.  527  ; 
Gentry  v.  McMinnis,  3  Dana,  382 ;  Bullock  v.  Wilson,  5  Porter,  388  ;  Kel- 
logg V.  Kj-auser,  14  S.  &  R.  137 ;  Morse  v.  State,  6  Conn.  9  ;  People  v.  De 
Graff,  1  Wheel.  C.  C.  205 ;  People  v.  Rolfe,  61  Cal.  540.  And  see  1  Roscoe 
Crim.  Ev.  (8th  Am.  Ed.)  222. 

2  Folkes  V.  Chad,  3  Dougl.  157  ;  4  T.  R.  498. 

3  Ferguson  v.  Hubbell,  97  N,  Y.  507. 


154  EXPERT  TESTIMONY. 

intercourse  with  any  man.  The  defendant  called  a  physician 
and  asked  him  the  hypothetical  question  whether,  in  his  opin- 
ion, pregnancy  would  probably  result  from  first  intercourse  in 
a  case  where  the  female  had  been  ravished  and  the  act  accom- 
plished against  her  Avill.  The  plaintiff's  counsel  objected  to 
this  question  on  the  ground,  among  others,  that  the  subject  of 
inquiry  was  not  such  as  to  admit  the  opinions  of  expert  wit- 
nesses ;  that  it  involved  no  question  of  science  or  skill,  and  the 
answer  must  necessarily  be  speculative  in  its  character.  The 
court  having  overruled  the  objection,  the  plaintiff  except- 
ing, the  witness  gave  his  opinion  that  it  would  not.  The 
Court  of  Appeals  sustained  the  ruling,  O'Brien,  J.,  who  deliv- 
ered the  opinion,  saying :  "  The  inquiry  as  to  the  conditions 
under  which  pregnancy  may  occur  is  one  peculiarly  within  the 
range  of  medical  science  and  skill.  The  common  knoAvledge 
and  judgment  of  mankind  may  be  greatly  aided  in  an  inquiry 
of  this  character  by  the  opinions  of  learned  and  scientific  men 
who  have  made  the  laws  governing  the  complex  physical 
organism  of  the  human  race  the  subject  of  profound  research 
and  study."  ^ 

But  while  "scientific  persons  may  give  their  opinion  on 
matters  of  science,  witnesses  are  not  receivable  to  state  their 
views  on  matters  of  legal  or  moral  obligations,  nor  on  the 
manner  in  which  others  would  probably  be  influenced,  if  the 
parties  acted  in  one  way  rather  than  another."  And  there- 
fore it  has  been  held,  that  the  materiality  of  a  fact  concealed 
at  the  time  of  insuring  was  a  question  for  the  jury  alone.^ 
And  on  a  criminal  trial,  in  the  question  of  sanity,  the  witness 
should  give  his  opinion  as  to  the  state  of  mind,  and  not  as  to 
the  responsibility  of  the  prisoner .^ 

The  exceptions  to  the  rule  are  confined  to  questions  of 
science,  trade,  and  a  few  others  of  the  same  nature.*  A 
party  has  no  right  to  ask  the  opinion  of  a  professional  witness 
upon  any  question  except  one  of  skill  or  science.^  The  testi- 
mony of  experts,  as  experts,  cannot  be  received  on  subjects  of 

1  Young  V.  Johnson,  123  N.  Y.  226. 

2  Campbell  v.  Rickards,  5  B.  «&  Ad.  840. 
9  Reg.  V.  Richards,  1  F.  &  F.  87. 

*  Morehouse  v.  Matthews,  2  Conist.  514;  State  v.  Stickley,  41  la.  332; 
Lambkin  v.  State,  12  Tex.  Crini.  App.  341  ;  Debbs  v.  State,  43  Tex.  650. 

5  Paige  V.  Hagard,  5  Hill,  603  ;  Woodon  v.  People,  1  Park.  Ciim.  R.  464  ; 
People  V.  Bodine,  1  Denio,  482  ;  People  v.  Thurston,  1  Park.  Crini.  R.  49. 


EXPERT  TESTIMONY.  155 

general  knowledge,  familiar  to  men  in  general,  and  with  which 
jurors  are  supposed  to  be  acquainted.^  The  rule  was  illus- 
trated in  a  case  in  the  Supreme  Court  of  the  United  States, 
where  Mr.  Justice  Strong  said  that  while  it  was  proper  to  ex- 
plain obscure  words  or  phrases  of  art  by  reference  to  the  art 
or  science  to  which  the  words  were  appropriate,  it  was  not  so 
when  the  words  or  phrases  were  familiar  to  all  classes,  grades, 
and  occupations.^  In  a  later  case  the  effort  was  to  put 
the  opinion  of  commercial  experts  in  the  place  of  that  of  the 
jury,  u|X)n  a  question  which  was  as  well  understood  by  the 
community  at  large  as  by  merchants  and  importers,  and  the 
testimony  was  rejected.' 

A  physician  cannot  be  asked  his  opinion  as  an  expert,  as 
to  whether  rape  could  have  been  committed  in  a  certain 
way,  if  the  question  can  be  decided  without  special  profes- 
sional knowledge.*  Nor  can  a  phj'sician  testify  as  an  expert 
on  the  damages  resulting  from  a  failure  to  keep  a  contract 
not  to  practise  within  a  specified  time.^  Nor  can  he  testify 
as  to  Avhether  or  not  certain  domestic  troubles  are  sufficient 
to  cause  insanity.^ 

The  value  of  an  article  in  common  use,  such  as  a  shot- 
gun, unlike  that  of  precious  stones,  paintings,  etc.,  may  be  esti- 
mated by  almost  every  man  in  the  community.^ 

The  danger  and  liabiUty  to  accident  existing  when  several 
persons  go  out  hunting  in  company  is  within  the  ordinary 
observation  of  men  acquainted  with  the  use  of  fire-arms,  and 
the  common  principles  of  human  conduct.^  The  question 
whether  one  shot  through  a  window  could  have  seen  and 
recognized  the  one  outside  who  shot,  was  not  one  of  skill  or 
science,  but  one  which  it  was  the  province  of  the  jur}^  to 
determine  from  the  evidence  as  to  the  circumstances  and  con- 
dition of  things  at  the  time  of  the  shooting,  and  therefore  not 

1  Mayhew  v.  Sullivan  Mining  Co.,  76  Me.  100  ;  Harvey  v.  U.  S.,  18  Ct.  CI. 
470 ;  Conner  v.  Stanley,  67  Cal.  315 ;  McKay  v.  Overton,  65  Tex.  82  ;  Con- 
cord Rd.  V.  Greeley,  23  N.  H.  237  ;  Com.  v.  Collier,  134  Mass.  203  ;  Mil- 
waukee &  St.  P.  R.  Co.  V.  Kellogg,  94  U.  S.  472  ;  Connecticut  Mutual  Life 
Ins.  Co.  V.  Lathrop,  111  U.  S.  618  ;  New  Jersey  Traction  Co.  v.  Brabban, 
32  Atl.  217.  2  Greenleaf  v.  Goodrich,  101  U.  S.  278  ;  25  L.  Ed.  845. 

8  Schneider  v.  Barney,  113  U.  S.  645. 

*  Cook  V.  State,  4  Zab.  843.  5  Ljnn  v.  Sigsbee,  67  111.  75. 

6  Carter  r.  State,  56  Ga.  463.  ^  Cooper  v.  State,  53  Miss.  398. 

8  State  V.  Anderson,  10  Ore.  448. 


156  EXPERT  TESTIMONY. 

a  subject  for  the  testimony  of  an  expert.^  Where  a  witness 
was  asked,  "  Now,  in  your  opinion  as  an  expert,  would  that 
plastering  be  in  the  condition  that  you  found  it,  had  the 
building  since  the  plastering  was  placed  there  settled  six  or 
seven  inches  ? "  An  objection  was  properly  sustained,  for  it  is 
apparent  to  any  one  that  the  plaster  of  a  building  which  has 
settled  six  or  seven  inches  cannot  be  in  the  condition  that  it 
was  before  it  settled.^ 

It  is  not  necessary  to  resort  to  expert  testimony  to  prove 
that  a  railroad  embankment  was  improperly  or  negligently 
constructed  so  as  to  obstruct  water.^  And  a  non-expert  wit- 
ness may  testify  that  certain  stains  are  blood,^  or  that  certain 
hairs  are  from  the  head  of  a  human  being ;  ^  and  such  a  wit- 
ness may  make  an  estimate  as  to  the  speed  of  a  railroad  train.® 

But  where  a  question  arose  as  to  the  safety  of  a  circular  saw 
of  large  dimensions  which  had  been  repaired,  it  was  held  that 
the  testimony  of  an  expert  might  be  received.'^ 

Experts  are  not  allowed  to  give  their  opinion  on  a  case 
when  its  facts  are  controverted,*  but  counsel  may  put  to  them 
a  state  of  facts  and  ask  their  opinion  thereon.* 

A  professional  witness,  present  during  the  trial,  cannot  base 
his  testimony  upon  a  recollection  and  construction  of  the  evi- 
dence given  in  the  case.  He  must  base  his  opinion  upon  his 
own  testimony  or  upon  a  statement  of  the  facts  assumed  to 
have  been  proven.^*' 

On  a  trial  for  murder,  before  Lord  Chief  Justice  Tindal, 
several  medical  witnesses,  who  had  been  present  during  the 

1  Jones  V.  state,  71  Ind.  66. 

2  Richardson  v.  City  of  Eureka,  96  Cal.  443. 

3  Lincoln  &  B.  H.  R.  Co.  v.  Sutherland  (Neb.),  63  N.  W.  859. 
*  State  V.  Robinson,  117  Mo.  649. 

6  People  V.  Thiede  (Utah),  39  Pac.  837. 

6  Ala.  G.  S.  R.  Co.  v.  Hall  (Ala.),  17  So.  176. 

T  Lan  V.  Fletcher  (Mich.),  62  N.  W.  357. 

«  U.  S.  V.  McGhee,  1  Cush.  C.  C.  1  ;  Daniels  v.  Musher,  2  Mich.  183  ; 
Brown  v.  Com.,  14  Bush  (Ky.),  398 ;  State  v.  Cole,  94  N.  C.  958. 

9  Dejarnette  v.  Com.,  75  Va.  867  ;  Luning  v.  State,  1  Chand.  178  ;  Lake 
V.  People,  1  Park.  Crim.  R.  495  ;  State  v.  Bowman,  98  N.  C.  509  ;  Noonan 
V.  State,  55  Wis.  258 ;  Reed  v.  People,  1  Park.  Crim.  Rep.  481. 

w  Moore  v.  State,  17  Ohio  St.  521  ;  State  v.  Felter,  25  la.  67  ;  Burns  v. 
Barenfield,  84  Ind.  43;  Craig  v.  Noblesville  &  Stony  Creek  G.  R.  Co.,  98 
Ind.  109  ;  Reynolds  v.  Robinson,  64  N.  Y.  395  ;  Gills  v.  Brown,  9  C.  &  P. 
601  ;  Guitterman  v.  Liverpool,  etc.,  Steamship  Co.,  88  N.  Y.  358;  Link  v. 
Sheldon,  136  N.  Y.  1  ;  McCarty  v.  Com.  (Ky.),  20  S.  W.  229. 


tt 


EXPERT  TESTIMONY.  157 

trial  and  heard  the  whole  of  the  evidence,  but  had  no  other 
means  of  forming  an  opinion  on  the  question,  were  admitted 
to  testify  that  in  their  judgment  the  prisoner  was  insane. 
But  the  propriety  of  admitting  such  evidence  having  been 
made  the  subject  of  discussion  in  the  House  of  Lords,  the 
question  was  submitted  to  the  judges,  who  were  of  opinion 
that  a  medical  witness  could  not  in  strictness  be  asked  his 
opinion  as  to  the  state  of  the  prisoner's  mind  at  the  time  of 
the  commission  of  the  alleged  crime,  or  whether  he  was  con- 
scious at  the  time  of  doing  the  act  that  he  was  acting  con- 
trary to  law,  or  whether  he  was  laboring  under  any  and  what 
delusions,  because  each  of  those  questions  involves  the  deter- 
mination of  the  truth  of  the  facts  deposed  to,  which  it  is  for 
the  jmy  to  decide,  and  the  questions  are  not  mere  questions 
upon  a  matter  of  science  ;  in  Avhich  case  such  evidence  is 
admissible  ;  but  that  where  the  facts  are  admitted,  or  not  dis- 
puted, and  the  question  becomes  substantially  one  of  science 
only,  it  may  be  convenient  to  allow  the  question  to  be  put  in 
that  general  form,  though  the  same  cannot  be  insisted  on  as 
matter  of  right.^ 

On  a  subsequent  occasion,  Mr.  Baron  Alderson,  with  the  con- 
currence of  Mr.  Justice  Cresswell,  refused  to  allow  a  witness 
to  be  asked  whether,  from  all  the  evidence  he  had  heard,  both 
for  the  prosecution  and  defence,  he  was  of  opinion  that  the 
prisoner  at  the  time  he  committed  the  act  was  of  unsound  mind, 
and  said  that  the  proper  mode  is  to  ask  what  are  the  symptoms 
of  insanity,  or  to  take  particular  facts,  and,  assuming  them  to 
be  true,  to  ask  whether  they  indicate  insanity  on  the  part  of 
the  prisoner ;  but  to  take  the  course  suggested,  he  said,  was 
really  to  substitute  the  witness  for  the  jury,  and  to  allow  him 
to  decide  upon  the  whole  case ;  that  the  jury  must  have  the 
facts  before  them,  and  that  they  alone  must  interpret  them  by 
the  general  opinions  of  scientific  men.'-^  Upon  a  trial  for  mur- 
der, where  the  death  was  alleged  to  have  been  caused  by  suffo- 
cation, a  physician  who  had  attended  in  court  and  heard  the 
evidence  was  asked  his  opinion  as  to  the  cause  of  death ;  but 
Mr.  Justice  Patteson  expressed  himself  very  strongly  upon 
the  unsatisfactory  nature  of  such  evidence,  the  witness  not 
having  seen  the  body,  and  his  opinion  being  founded  on  the 

1  Reg.  V.  M'Naghten,  10  CI.  &  F.  200  ;  1  C.  &  K.  138  ;  8  Scott  N.  R.  595. 
a  Reg.  V.  Frances,  4  Cox  C.  C.  57. 


158  EXPERT  TESTIMONY. 

facts  stated  by  other  witnesses.^  These  cases  have  been  fol- 
lowed in  England  by  a  series  of  determinations  in  which  such 
evidence  has  been  held  to  be  inadmissible.^ 

The  interrogatories  to  be  put  to  an  expert  are  not  as  to  what 
his  opinion  is  of  the  testimony,  but  what  is  his  opinion  of  the 
facts  as  stated  to  him  by  the  questioner.^  The  assumed  facts 
should  be  stated  as  facts.*  To  predicate  a  hypothetical  ques- 
tion upon  "  all  the  testimony  "  in  the  case,  is  error.^ 

The  questions  must  be  so  shaped  as  to  give  the  witness  no 
occasion  to  mentally  draw  his  own  conclusions  from  the  whole 
evidence  or  a  part  thereof,  and  from  the  conclusions  so  drawn 
express  his  opinion,  or  to  decide  as  to  the  weight  of  evidence 
or  the  credibility  of  the  witnesses ;  and  his  answer  must  be 
such  as  not  to  involve  any  such  conclusions  so  drawn,  or  any 
opinion  of  the  expert,  as  to  the  weight  of  the  evidence  or 
credibility  of  the  witnesses.^ 

The  jury  are  the  judges  of  the  facts.  The  witness  can  state 
what  is  insanity  or  what  causes  insanity,  but  he  must  assume 
hypothetical  facts  when  he  tells  the  jury  his  conclusions.''' 

Where  there  were  conflicting  symptoms  and  indications  and 
a  direct  conflict  of  testimony,  a  witness  was  improperly  asked 
to  give  his  opinion  based  on  the  testimony,  as  to  the  soundness 
or  unsoundness  of  mind  of  the  defendant.** 

Where  a  witness,  after  giving  his  opinion  as  to  the  insanity 
of  the  deceased,  based  on  his  personal  knowledge  and  obser- 
vation, stated  that  he  had  heard  all  the  testimony  in  the  case, 
he  was  asked,  "  In  view  of  the  testimony  as  you  have  heard 
it,  and  in  connection  with  your  own  knowledge  of  the  state  of 
Mr.  D.  at  the  time  he  was  in  the  asylum,  in  your  opinion  was 
he,  or  was  he  not,  at  that  time,  insane  ?  "  To  this  he  answered, 
"  That  opinion  I  have  already  expressed — that  he  was  not 
insane — based  upon  my  own  personal  knowledge."     The  court 

1  Reg.  V.  Newton,  Shrewsbury  Spring  Ass.,  1850. 

2  Reg.  V.  Pate,  C.  C.  C.  12th  July.  1850  ;  Doed.  Bainbridge  v.  Bainbridge, 
coram  Campbell,  L.  C.  J.,  Stafford  Summer  Ass.,  1850  ;  Cox's  C.  C.  454; 
Reg.  V.  Leyton,  Id.  149,  coram  Rolfe,  B. 

^  Butler  V.  St.  Louis  Life  Ins.  Co.,  45  la.  93.  And  see  Perkins  v.  Concord 
Ry.  Co.,  44  N.  H.  333  ;  Fairchild  v.  Bascomb,  35  Vt.  398. 

*  Russ  V.  Wabash  West.  Ry.  Co.,  113  Mo.  45. 

s  People  V.  McElvaine,  131  N.  Y.  250. 

6  McMechem  v.  McMechem,  17  W.  Va.  684. 

'  State  V.  Coleman,  80  S.  C.  441  ;  Price  v.  Richmond  &  W.  R.  Co.,  38 
S.  C.  199.  8  Smith  V.  Hickenbotham,  57  la.  733. 


EXPERT  TESTIMONY.  I59 

told  the  witness  that  a  hypothetical  case  was  put  to  him  ;  and 
the  question  was  again  asked  in  this  form  :  "I  want  tlie 
opinion  now  with  your  own  individual  observation,  from  what 
has  reached  you  in  the  testimony  ; "  to  which  the  witness 
replied  :  "  The  testimony  has  not  served  to  induce  me  to 
change  my  opinion  already  expressed."  The  court  allowed 
these  questions  against  objection,  and  this  was  held  erro- 
neous.i 

In  an  action  brought  to  recover  damages  for  the  breach  of  a 
contract  of  charter-party,  where  the  defence  was  predicated 
upon  the  evidence  given  by  the  master  of  the  vessel,  and  the 
plaintiff  endeavored  to  avoid  the  effect  of  it  by  showing  that 
the  vessel,  by  proper  management,  might  have  entered  one  of 
the  ports  of  the  Gulf  of  Mexico,  where  her  injuries  could  have 
been  repaired,  and  she  enabled  to  return  for  her  cargo,  a 
witness  was  asked :  "  Under  the  state  of  facts  mentioned  in 
that  deposition,  what  ports  could  the  captain  have  made  in  the 
Gulf  of  Mexico  ? "  The  question  was  improperly  allowed.^  In 
an  action  to  recover  damages  for  the  death  of  the  plaintiff's 
intestate,  caused  by  the  alleged  wrongful  acts  of  the  defendant's 
servants,  the  court,  speaking  by  Mitchell,  J,,  said  :  "  It  was 
entirely  proper  to  inquire  of  these  experts  as  to  the  probable 
effect  of  excitement  or  physical  exertion  upon  one  in  deceased's 
diseased  condition,  but  we  never  knew  of  a  case,  and  have  not 
been  referred  to  any,  where  it  was  ever  j^ermitted  to  repeat  to 
a  witness  all  the  evidence  in  the  case,  and  then  ask  him  what 
verdict,  in  his  opinion,  ought  to  be  rendered  in  the  case,  which 
was  in  effect  what  was  sought  to  be  done  in  this  instance. 
Courts  have  gone  far  enough  in  subjecting  life,  liberty,  and 
property  to  the  mere  speculative  opinions  of  men  claiming  to 
be  experts,  and  we  are  not  disposed  to  extend  the  rule  into 
the  field  of  mere  hypothetical  conjecture."  ^ 

But  where  the  witnesses  are  men  of  unquestionable  character 
and  ability,  it  can  hardly  be  material  whether  the  question  is 
asked  in  a  more  or  less  direct  form  ;  especially  as  there  can  he 
no  difficulty  in  so  shaping  the  question  as  to  mask  while  it 
substantially  involves  the  precise  objection ;  and  in  several 
cases  in  England  medical  witnesses  have  been  permitted  with- 

1  Butler  V.  St.  Louis  Life  Ins.  Co.,  45  la.  93. 

2  Dolly  V.  Morris,  10  Hun,  201. 

^  Briggs  r.  Minneapolis  St.  Ry.  Co.,  52  Minn.  36. 


160  EXPERT  TESTIMONY. 

out  objection  to  give  their  opinions  as  to  sanity  of  parties 
charged  with  crime,  as  grounded  upon  the  evidence  that  had 
been  adduced  both  for  the  jirosecution  and  the  defence ;  though, 
if  made,  the  objection  must  of  course  prevail,^ 

And  it  is  held  that  where  the  rule  is  substantially,  though 
not  strictly  observed,  the  judgment  will  be  allowed  to  stand. 
A  witness  was  asked,  "  Upon  the  hypothesis  that  the  testimony 
given  by  the  witnesses  in  this  case,  etc.,  is  all  true,  what  would 
be  your  opinion,  etc.  ?  "  And  this  was  held  not  open  to  objec- 
tion.2  In  an  action  against  a  physician  for  malpractice,  after 
the  manner  in  which  the  operation  had  been  performed  was 
shown,  and  it  having  been  shown  that  the  expert  had  heard 
the  testimony,  he  was  asked,  "  Suppose  the  statement  relative 
to  the  amputation  and  its  subsequent  treatment  to  be  truthful, 
was  or  was  not  the  amputation  well  performed?  Was  the 
subsequent  treatment  proper  or  improper?  And  in  your 
opinion  was  or  was  not  the  death  of  the  patient  the  result  of 
any  neglect  or  want  of  skill  in  the  surgeon  ? "  These  questions 
were  held  purely  hypothetical  and  correct.^ 

It  is  said  in  support  of  this  position  that,  "  where  the  facts 
are  not  complicated,  and  the  evidence  is  not  contradictory,  and 
the  terms  of  the  question  require  the  witness  to  assume  the 
facts  stated  as  true,  he  is  not  required  to  draw  a  conclusion 
of  fact."  4 

Hypothetical  questions  must  be  based  on  facts  proved  or 
which  the  evidence  tends  to  establish.^  Though  a  witness  has 
no  knowledge  of  the  nature  and  amount  of  services  rendered, 
still  his  opinion  on  the  question  of  value  may  be  given  in  reply 
to  a  question  stating  the  nature  and  amount  of  such  services 
hypothetically.  But  to  render  such  evidence  competent  there 
must  be  testimony  in  the  case  tending  to  show  that  the  services 
thus  stated  were  in  fact  rendered.  If  the  hypothetical  case  is 
imaginary  the  evidence  ought  not  to  go  to  the  jury,  for  it  will 

1  Reg.  V.  Baranelli,  C.  C.  C,  Ap.  1855  ;  Reg.  v.  Westron,  C.  C.  C,  Feb. 
1856  ;  Starkie's  L.  of  Ev.  (4th  Ed.)  175. 

2  Negroes  Jerry  et  al.  v.  Townshend,  9  Md.  145. 
8  Wright  V.  Hardy,  23  Wis.  348. 

4  Hunt  V,  Lowell  Gas  Light  Co.,  8  Allen  (Mass.),  169. 

6  State  V.  Anderson,  10  Ore.  448  ;  Rogers,  Expert  Testimony  (2d  Ed.),  §  37. 
And  see  Champ  V.  Com.,  2  Mete.  (Ky.)  17;  Newton  v.  State,  21  Fla.  53; 
Ballard  v.  State,  19  Neb.  609  ;  Ray  v.  Ray,  98  N.  C.  566 ;  State  v.  Ginger, 
80  la.  577  ;  Russ  v.  Wabash  West.  Ry.  Co.,  112  Mo.  45. 


EXPERT  TESTIMONY.  161 

have  a  tendency  to  mislead  them.i  g^^  a  party  seeking  an 
opinion  from  an  expert  witness  may  assume  in  his  hypothetical 
question  such  facts  as  he  deems  proved  by  the  evidence.^  The 
proper  purpose  of  a  hypothetical  question  is  to  obtain  the 
opinion  of  one  entitled  by  experience  to  speak  and  express  an 
opinion  upon  a  state  of  facts,  which  for  the  purpose  of  his  con- 
sideration are  to  be  received  by  him  as  true.^  And  it  is  not 
essential  that  the  evidence  as  to  the  facts  assumed  to  be  proven 
should  be  uncontradicted.*  The  counsel  may  assume  any  state 
of  facts  which  the  evidence  tends  to  establish,  and  may  vary 
the  questions  so  as  to  cover  and  present  the  different  theories. 
But  there  must  be  evidence  in  the  case  tending  to  establish  all 
the  facts  stated  in  the  question.^  Concerning  this  the  Supreme 
Court  of  Wisconsin  has  said  :  "  The  rule  in  that  respect  must 
be  that  in  propounding  a  hypothetical  question  to  the  expert, 
the  party  may  assume  as  proved  all  facts  which  the  evidence 
in  the  case  tends  to  prove,  and  the  court  ought  not  to  reject 
the  question  on  the  ground  that  in  his  opinion  such  facts  are 
not  established  by  the  preponderance  of  evidence.  What  facts 
are  proved  in  the  case,  when  there  is  evidence  to  prove  them, 
is  a  question  for  the  jury  and  not  for  the  court.  The  party 
has  the  right  to  the  opinion  of  the  expert  witness  on  the  facts 
which  he  claims  to  be  the  facts  of  the  case,  if  there  be  evidence 
in  the  case  tending  to  establish  such  claimed  facts,  and  the  trial 
judge  ought  not  to  reject  the  question  because  he  may  think  such 
facts  are  not  sufficiently  established."  ^  If  the  facts  assumed 
are  not  found  established  by  the  jury,  then  the  opinion  will 
be  deprived  of  all  weight  in  the  case ;  ^  but  if  they  are  found, 
then  appropriate  effect  will  necessarily  be  awarded  to  it,  and 
the  opinion  given  will  aid  the  jury  in  solving  the  controversy.* 
In  the  charge  to  the  jury  in  a  recent  case  the  court  said :  "  If 

^  Williams  v.  Brown,  28  Ohio  St.  547.  See  also  opinion  of  Staples,  J., 
in  Dejarnette  v.  Com. ,  75  Va.  867,  875. 

2  Rogers,  Exp.  Testimony  (1st  Ed.),  39  ;  Tiler  v.  N.  Y.  C.  R.  R,  Co.,  49  N. 
Y.  142 ;  Louisville,  etc.,  Ry.  Co.  v.  Falvey,  104  Ind.  409  ;  Goodwin  v.  State, 
96  Ind.  550  ;  Guetig  v.  State,  66  Ind.  94  ;  Nave  v.  Tucker,  70  Ind.  15. 

3  Girard  Coal  Co.  v.  Wiggins,  52  111.  App.  69. 
*  Jackson  v.  Burnham  (Colo.),  39  Pac.  577. 

5  Russ  V.  Wabash  West.  R.  Co.,  112  Mo.  45  ;  18  L.  R.  A.  823. 

^  Quinn  v.  Higgins,  63  Wis.  664.  And  see  People  v.  Han-is,  136  N.  Y. 
423. 

7  In  re  Will  of  Norman,  72  Id.  89  ;  Russ  v.  Wabash  West.  Ry.  Co.,  112 
Mo.  45.  8  Dolz  V.  Morris,  10  Hun,  201. 

11 


162  EXPERT  TESTIMONY. 

the  facts  stated  as  a  basis  for  the  hypothetical  question  pro- 
pounded to  the  medical  experts  in  this  case  were  not  substan- 
tially correct,  as  shown  by  the  evidence  introduced  on  the  trial 
of  the  case,  then  the  opinion  given  by  the  experts  based  upon 
such  assumed  state  of  facts  is  entitled  to  but  little  or  no  weight 
as  may  be  determined  from  the  evidence."  This  was  held 
erroneous  and  the  case  was  reversed,  because  the  jury  might 
have  understood  that  they  were  justified  in  giving  some 
weight  and  force  to  the  evidence  of  experts,  even  though  they 
should  find  that  such  evidence  was  bottomed  upon  facts  not 
proven.^ 

Where  a  hypothetical  question  is  put  to  a  witness  for  his 
opinion,  the  question  must  be  full  enough  to  form  a  basis  for 
an  opinion.  Where  the  question  relates  to  the  v^lue  of  an 
animal,  it  must  omit  no  important  qualities  of  the  animal 
affecting  its  value,  about  which  there  is  no  dispute,  and  which 
would  necessarily  influence  an  opinion.^ 

Where  the  opinion  of  an  expert  is  offered,  the  court  may 
hear  evidence  to  ascertain  first  whether  he  is  an  expert.^  A 
witness  cannot  be  permitted  to  give  his  opinion  as  an  expert 
until  it  appears,  by  a  preliminary  examination,  that  he  is  a 
person  of  skill  in  the  particular  department  or  subject-matter 
in  which  his  opinion  is  desired.*  A  witness  may  not  testify 
as  an  expert  in  medical  matters  without  showing  his  standing 
as  a  physician.^ 

While  it  must  appear  that  the  witness  has  enjoyed  some 
means  of  special  knowledge  or  experience,  no  rule  can  be  laid 
down  as  to  the  extent  of  it.  Much  depends  upon  the  nature  of 
the  question  with  regard  to  which  an  opinion  is  asked.  There 
are  some  matters  of  which  every  man  with  ordinary  oppor- 
tunities for  observation  is  able  to  form  a  reliable  opinion.^  It 
is  not  necessary  to  call  a  drover  or  butcher  to  ascertain  the 
value  of  a  cow.'^    One  who  has  knowledge  on  the  subject  is 

1  Hall  V.  Rankin,  87  la.  261. 

2  Chicago,  M.  &  St.  P.  Co.  v.  Kendall,  49  111.  App.  398. 
8  Mendham's  Case,  6  Rand.  704. 

*  Hills  r.  Home  Ins.  Co.,  129  Mass.  345;  HeaM  v.  Thing,  45  Me.  392; 
New  Jersey  Traction  Co.  v.  Brabban,  82  Atl.  217. 

f*  Polk  V.  State,  86  Ark.  117.  A  physician  blowing  himself  otherwise 
competent,  is  not  incompetent  because  not  in  practice  at  the  time  of  the 
occurrence  to  which  he  testifies.    Roberts  v.  Johnson,  58  N.  Y.  613. 

6  Wilkinson  v.  Moseley,  30  Ala.  562.    t  Ohio  Rd.  Co.  v.  Irwin,  27  111.  178. 


EXPERT  TESTIMONY.  163 

competent  to  testify  as  to  the  effect  the  construction  of  a 
proposed  improvement  would  have  on  the  market  value  of 
property.^  An  expert  has  been  defined  to  be  one  who  has 
made  the  subject  upon  which  he  gives  his  opinion  a  matter  of 
particular  study,  practice,  or  observation,  and  who  has  particular 
and  special  knowledge  on  the  subject.^  He  is  (as  is  signified 
in  the  derivation  of  the  word  itself)  one  instructed  by  experience. 
To  become  an  expert  requires  a  course  of  previous  habit  and 
practice,  or  of  study,  so  as  to  be  familiar  with  the  subject.^ 
Concerning  the  character  of  certain  stains,  one  may  testify  as 
an  expert  though  he  has  abandoned  his  studies  as  a  chemist 
and  has  devoted  himself  to  the  business  of  a  druggist.* 

The  question  whether  a  witness  is  an  expert  is  for  the 
decision  of  the  court.^  And  such  decision  is  conclusive  unless 
it  appears  upon  the  evidence  to  have  been  erroneous,  or  to 
have  been  founded  upon  some  error  in  law.®  The  court  will 
not  reverse  either  on  account  of  the  admission  or  the  rejection 
of  such  evidence  except  in  a  clear  and  strong  case.'^  It  may  be 
shoAvn  that  the  personal  experience  of  the  witness  has  pecul- 
iarly fitted  him  to  testify  as  an  expert  concerning  the  matter  in 
dispute.  In  an  action  for  personal  injury  it  was  a  controverted 
question  whether  or  not  the  plaintiff  was  paralyzed  in  her  left 
arm  or  leg,  and  a  physician  of  thirty  years'  standing  introduced 
by  the  plaintiff  was  allowed  to  testify :  "  I  am  paralyzed  on  the 
left  side — my  arm  and  leg  ;  have  no  practical  use  of  them,  but 
I  can  move  the  leg  along."  The  opinion  was  delivered  by 
Mr.  Justice  Sheldon,  who  said :  "  It  is  true  that  the  witness's 
paralysis  was  not  within  the  issue,  and  yet  it  was  not  a  wholly 
unimportant  fact.  It  tended  to  add  strength  to  the  witness' 
testimony  as  an  expert,  in  being  calculated  to  excite  in  him  a 

1  Pike  V.  Chicago  (111.),  40  N.  E.  567. 

2  Mr.  Justice  Doe,  in  Jones  v.  Tucker,  41  N.  H.  547.  See  also  Dale  v. 
Johnson,  50  N.  H.  452. 

^  Cal-ter  v.  Bochin,  1  Smith's  Lead.  Cases,  286,  n.;  Nelson  v.  Sun  Mutual 
Ins.  Co.,  71  N.  Y.  459;  Dickinson  r.  Fitchburg,  13  Gray,  546.  And  see 
Van  der  Donckt  v.  Thellesson,  8  M.  G.  &  S.  812  ;  Bird  v.  State,  21  Grat.  800  ; 
Bemis  v.  Rd,  Co.,  58  Vt.  636. 

*  Haas  V.  Green  (C.  P.),  57  N.  Y.  S.  R.  545. 

&  Ai-desco  Oil  Co.  v.  Gilson,  63  Pa.  St.  146  ;  Hills  v.  Home  Ins.  Co.,  129 
Mass.  345  ;  Howard  v.  City  of  Providence,  6  R.  I.  514  ;  State  v.  Cole,  94  N. 
C.  598. 

'  Perkins  v.  Stickney.  132  Mass.  217. 

^  Long  V.  First  German  Congregation,  63  Pa.  St.  156, 


164  EXPERT  TESTIMONY. 

peculiar  interest,  and  lead  him  to  give  a  special  study  to  that 
subject  of  inquiry.''  ^ 

A  physician  testifying  as  to  the  condition  of  a  patient,  may 
base  his  opinion  partly  on  declarations  made  to  him  by  the 
patient,  which  he  may  relate  to  the  jury.^  The  opinion  of  an 
expert  as  to  the  sanity  of  a  party,  founded  upon  a  personal 
examination  of,  and  acquaintance  with,  the  party  is  admissible.^ 
And  while  neither  books  of  established  reputation,  nor  statistics 
— for  example,  of  the  increase  of  insanity — can  be  read  to  the 
jury,^  yet  medical  Avitnesses  may  give  opinions  upon  information 
derived  from  books,  not  being  confined  to  the  results  of  their 
observation  and  experience.^ 

On  this  subject,  Mr.  Justice  Campbell,  of  the  Supreme  Court 
of  Michigan,  made  the  following  clear,  explanatory  observa- 
tions :  "  No  one  has  any  title  to  respect  as  an  expert,  or  has 
any  right  to  give  an  opinion  on  the  stand,  unless  as  his  own 
opinion ;  and  if  he  has  not  given  the  subject  involved  such 
careful  and  discriminating  study  as  has  resulted  in  the  forma- 
tion of  a  definite  opinion,  he  has  no  business  to  give  it.  Such 
an  opinion  can  only  be  safely  formed  or  expressed  by  persons 
who  have  made  the  scientific  questions  involved  matters  of 
definite  and  intelligent  study,  and  who  have  by  such  applica- 
tion made  up  their  own  minds.  In  doing  so  it  is  their  business 
to  resort  to  such  aids  of  reading  and  study  as  they  have  reason 
to  believe  contain  the  information  they  need.  This  will 
naturally  include  the  literature  of  the  subject.  But  if  they 
have  not  taken  trouble  enough  to  find,  or  suppose  they  find, 
that  certain  authors  say  certain  things  without  further  satisfy- 
ing themselves  how  reliable  such  statements  are,  their  own 
opinion  must  be  of  very  moderate  value,  and  whether  correct  or 
incorrect,  cannot  be  fortified  before  a  jury  by  statement  of 
what  those  authors  hold  on  the  subject.  The  jury  are  only 
concerned  to  know  what  the  Avitness  thinks,  and  what  capacity 
and  judgment  he  shows,  to  make  his  opinions  worthy  of 
respect.     If  the  opinion  of  an  author  could  be  received  at  all, 

1  Chicago,  etc.,  R.  Co.  v.  Lambert,  119  111.  256. 

2  State  V.  Gedicke,  43  N.  J.  L.  86. 

3  Boardnian  v.  Woodman,  47  N.  H.  120  ;  People  v.  Lake,  12  N.  Y.  358. 

4  Melvin  v.  Easby,  1  Jones'  L.  386  ;  Com.  v.  Wilson,  1  Gray,  337.     See  1 
Greenl.  Ev. 

6  State  V.  Terrell,  12  Rich.  L.  321 ;  State  v.  Wood,  53  N.  H.  484 ;  Link  v. 
Sheldon,  136  N.  Y.  1. 


EXPERT  TESTIMONY.  165 

it  should  be  from  his  own  words,  not  in  single  passages,  but  in 
combination  ;  and  this,  as  has  been  heretofore  held,  cannot  be 
done.  It  is  excluded  chiefly  as  both  unknown  as  to  value  and 
as  hearsay,  and  an  attempt  to  swear  to  his  doctrines  orally 
would  be  hearsay  still  further  removed,  besides  involving  the 
other  difficulty  of  needing  interpretation  and  responsibility."  ^ 
But  it  must  be  shown  upon  what  the  expert  founds  his 
opinion.*  Even  in  cases  where  experts  are  called  upon  to  give 
an  opinion  based  upon  their  personal  observation,  the  facts 
upon  which  the  opinion  is  founded  must  be  stated.  Otherwise 
the  witness  might  be  giving  an  opinion  which  would  have 
great  weight  with  the  jury  upon  a  state  of  facts  very  different 
from  those  found  by  them  in  the  case  on  trial.^  And  so  in  an 
action  for  the  value  of  services,  where  the  witness  knows 
nothing  of  the  character  of  the  case,  nor  of  the  amount  or 
character  of  the  services  rendered,  he  may  not  be  asked, 
"  From  what  you  know  of  the  case  what  do  you  think  would 
be  a  fair  amount  for  "  the  services  ?  * 


Section  II. 

The   Value  of  Expert  TestiTtiony. 

In  many  countries  this  kind  of  testimony,  technically 
termed  expertise^  is  invested  with  a  sort  of  semi-official  author- 
ity, and  special  rules  are  laid  down  for  the  estimation  of  its 
proving  force.^  Neither  in  England,  however,  nor  in  this 
country  is  any  peculiar  authority  given  to  the  testimony  of 
witnesses  of  this  description ;  its  value  is  estimated  by  the  same 
general  principles  as  are  applied  in  estimating  the  capacity, 
credit,  and  weight  of  all  other  witnesses,^  and  the  courts  have 
wisely  repelled  all  attempts  to  depart  from  the  established  and 
ordinary  rules  of  evidence  and  judgment.  The  opinions  of 
experts  are  advisory  only  and  are  not  conclusive  upon  the 

1  People  V.  Millard,  53  Mich.  63. 

2  Polk  V.  State,  36  Ark.  117 ;  Price  v.  Richmond  &  D.  R.  Co.,  38  S.  C. 
199.  8  Hitchcock  v.  Burgett,  33  Mich.  501, 

*  Williams  v.  Brown,  38  Ohio  St.  547. 
^  Mittermaier,  xd  supra,  c.  136  et  seq, 
«  Best's  Prin.  of  Ev.  385  et  seq.;  State  v.  MiUer,  9  Houst.  564. 


IQQ  EXPERT  TESTIMONY. 

jury.i  They  are  to  be  considered  by  the  jury  in  connection 
with  all  the  other  evidence  in  the  case  ;  and  the  jury  are  not 
bound  to  act  upon  them  to  the  exclusion  of  other  testimony .2 

It  is  scarcely  necessary  to  add  that  scientific  evidence  being 
generally  matter  of  opinion,  can  seldom  be  implicitly  adopted. 
Lord  Gottenham  said  he  had  seen  enough  of  professional  opin- 
ions to  be  aware  that  in  matters  of  doubt,  upon  which  the  best 
constructed  and  best  informed  minds  may  differ,  there  is  no 
difficulty  in  procuring  opinions  on  either  side.^ 

A  learned  writer  on  the  Law  of  Scotland  observes,  that 
"  there  is  perhaps  no  kind  of  testimony  more  subject  to  bias  in 
favor  of  the  adducer  than  that  of  skilled  witnesses  ;  for  many 
men,  who  would  not  willingly  misstate  a  simple  fact,  can  ac- 
commodate their  opinions  to  the  wishes  of  their  employers, 
and  the  connection  between  them  tends  to  warp  the  judgment 
of  the  Avitnesses  without  their  being  conscious  of  it ;  and  hence 
skilled  witnesses,  in  questions  of  handwriting,  can  usually  be 
got  in  equal  numbers  on  either  side ;  and  engineers  are  more 
frequently  like  counsel  for  their  employers  than  like  witnesses 
giving  their  real  opinions  on  oath."  * 

And  a  learned  judge  of  the  New  York  Court  of  Appeals, 
after  quoting  the  language  of  Lord  Campbell  referred  to  in  the 
note  to  the  preceding  paragraph,  made  the  following  remarks : 
"  Without  indorsing  this  strong  language,  which  is,  however, 
countenanced  by  the  utterances  of  other  judges  and  of  some  text- 
writers,  and  believing  that  opinion  evidence  is,  in  many  cases, 
essential  to  the  administration  of  justice,  yet  we  think  it  should 
not  be  much  encouraged,  and  should  be  received  only  in  cases 
of  necessity.  Better  results  will  generally  be  reached  by  taking 
the  impartial,  unbiased  judgments  of  twelve  jurors  of  common 
sense  and  common  experience  than  can  be  obtained  by  taking 
the  opinions  of  experts,  if  not  generally  hired,  at  least  friendly, 
whose  opinions  cannot  fail  generally  to  be  warped  by  a  desire 
to  promote  the  cause  in  which  they  are  enlisted."  ^  Undoubt- 
edly many  discreditable  exhibitions  have  taken  place  in  our 

1  Moore  v.  Ellis,  89  Wis.  108.  2  Quetiz  v.  State,  66  Ind.  94. 

8  Dyce  Sombre's  Case,  1  M'N.  &  Gord.  128. 

*  2  Dickson  on  the  L.  of  Ev.  ut  supra,  996  ;  and  see  the  language  of  Lord 
Campbell  in  the  Tracey  Peerage,  10  C.  &  F.  191.  See  also  the  remarks  of 
Judge  Taylor,  Taylor's  Ev.  §  58. 

6  Ferguson  v.  Hubbell,  97  N.  Y.  507. 


EXPERT  TESTIMONY.  167 

courts  of  justice ;  nor  is  it  possible  to  restrict  tlie  foregoing 
reproaches  to  ^^^tnesses  taken  from  the  particular  professions 
which  have  been  enumerated.  Happily,  however,  such  cases 
are  but  exceptional ;  and  true  scientific  knowledge,  under  the 
government  of  high  principle,  is  of  the  greatest  value,  as  sub- 
sidiary to  the  ends  of  justice.^  And  it  has  been  held,  an  inva- 
sion of  the  province  of  the  jury  to  charge  that  common  ex- 
perience has  shown  that  the  opinions  of  experts  upon  questions 
of  insanity  have  become  of  little  practical  value.^ 

And  evidence  of  scientific  persons,  on  a  capital  trial,  as  to 
any  distinction  brought  out  by  scientific  investigation,  between 
the  appearance  of  stains  of  human  blood  and  those  of  the  blood 
of.  animals,  is  admissible.^  The  subject  is  one  which  has  re- 
ceived much  attention  at  the  hands  of  men  qualified  to  discuss 
it ;  and  it  is  important  because  of:  the  number  of  cases  in  which 
the  strength  of  the  prosecution  lies  mainly  in  testimony  as  to 
the  character  of  blood-stains.* 

Some  valuable  remarks  upon  this  kind  of  evidence  were 
made  by  Lord  Chief  Justice  Cockburn,  upon  a  trial  for  murder, 
at  Taunton  Spring  Assizes,  1857.  The  murder  was  effected  by 
cutting  the  throat.  A  knife  Avas  found  on  the  person  of  the 
prisoner,  with  stains  of  blood  upon  it ;  and  it  was  contended 
that  the  murder  had  been  effected  with  this  weapon,  while  it 
was  alleged  on  the  part  of  the  prisoner  that  it  had  been  used 
for  cutting  raw  beef i  A  professional  analyst  called  on  the  part 
of  the  prosecution  stated  that  the  blood  had  not  coagulated  till 
it  was  on  the  knife,  that  the  knife  had  been  immersed  in  living 
blood  up  to  the  hilt,  and  that  it  was  not  the  blood  of  an  ox,  a 
sheep,  or  a  pig.  His  opinion  was  grounded  upon  the  relative 
sizes  of  the  globules  of  blood  in  man  and  other  animals,  that  of 
man  being  stated  to  be  l-3400th  of  an  inch,  of  the  ox  l-SSOOth, 
of  the  sheep  l-5200th,  and  of  the  pig  l-450Uth,  the  relative  sizes 
being  as  53  to  34  in  the  ox,  52  to  34  in  the  sheep,  and  45  to  34 
in  the  pig.  The  learned  judge  said,  "  The  witness  had  said  the 
blood  on  the  knife  could  not  be  the  blood  of  an  animal  as  stated 
by  the  prisoner,  and  took  upon  himself  to  say  that  it  was  not 

^  On  the  subject  of  scientific  evidence  in  cases  of  poisoning  and  of  infant- 
icide, see  infra.  2  Burney  v.  Torrey,  100  Ala.  157. 

8  State  V.  Knights,  43  Me.  11. 

*  I  have  seen  it  stated  on  good  authority,  that  in  a  recent  year  fifteen 
cases  of  this  kind  arose  in  and  about  th^  city  of  New  York  alpn§< 


168  EXPERT  TESTIMONY. 

the  blood  of  a  dead  animal ;  that  it  was  living  blood,  and  that 
it  was  human  blood,  and  he  had  shown  them  the  marvellous 
powers  of  the  modern  microscope.  At  the  same  time,  admit- 
ting the  great  advantages  of  science,  they  were  coming  to  great 
niceties  indeed  when  they  speculated  upon  things  almost  beyond 
perception,  and  he  would  advise  the  jury  not  to  convict  on  this 
scientific  speculation  alone."  The  case  was  conclusive  on  the 
general  evidence.^ 

Owing  to  the  minute  character  of  the  measurements,  and 
the  fact  that  they  are  capable  of  being  disturbed  and  rendered 
erroneous  by  very  slight  influences,  the  question  of  deciding 
whether  a  stain  was  produced  by  the  blood  of  a  human  being 
or  of  an  animal,  is  one  attended  with  the  highest  difficulty. 
It  seems  safe  to  say  that  by  no  means  Avhich  has  yet  been  dis- 
covered can  this  question  be  determined,  in  all  cases,  with 
absolute  certainty.  While  it  is  claimed  that  recent  discoveries 
have  greatly  lessened  the  doubtful  quality  of  testimony  in  such 
cases,2  the  inherent  difficulties  are  so  great  that  the  evidence 
ought  in  every  case  to  be  received  with  caution  and  given  to 
the  jury  with  the  most  careful  instructions.^  Undoubtedly,  as 
bearing  on  this  point,  the  nature  of  the  investigation  and  the 
learning  and  skill  of  the  expert  may  be  considered.* 

The  remarks  of  Lord  Chief  Justice  Cockburn  are  fittingly 
supplemented  by  some  observations  of  Finch,  J.,  in  a  recent 
case  in  New  York.  The  prisoner  claimed  that  blood-stains  on 
the  clothing  and  shoes  which  he  wore  on  the  day  of  the  homi- 
cide were  caused  by  the  drippings  of  the  blood  of  animals  in 
a  market  in  which  he  was  in  the  habit  of  playing.  The  ex- 
pert called  by  the  prosecution  refused  to  swear  positively 
that  the  stains  were  human  blood.  The  learned  judge  doubted 
"  if  any  scientific  ability  could  surely  and  with  absolute  cer- 
tainty distinguish  between  the  blood  corpuscles  of  man  and  of 
some  animals  under  all  circumstances ;  and  considered  that 
confidence  was  rather  strengthened  in  the  opinion  which  the 
expert  witness  had  expressed,  by  the  fact  that  he  refused  to 

1  Reg.  V.  Nation,  Taylor's  Med.  Jour.  379. 

2  6  Chic.  Law  Journal,  114. 

3  For  a  clear  idea  of  the  difficulties  attending  the  identification  of  human 
blood,  the  reader  should  consult  a  valuable  article  by  Dr.  Marshall  D.  Ewell, 
in  10  Med.-Leg.  Journal,  175,  entitled  "A  Micrometric  Study  of  Blood- 
Corpuscles." 

*  State  V.  Miller,  9  Houst.  564  ;  People  v.  Smith  (Cal.),  39  Pac.  40. 


EXPERT  TESTIMONY.  169 

turn  it  into  a  positive  assertion,  and  left  it  to  stand  as  his 
judgment,  that  the  uniformity  in  size,  corresponding  with  that 
of  human  blood  corpuscles,  which  characterized  the  stains  ex- 
amined, indicated  that  the  latter  were  not  caused  by  the  blood 
of  other  animals."  The  probability  that  the  stains  were  occa- 
sioned by  human  blood  was  greatly  augmented  when  the  testi- 
mony of  the  expert  was  considered  in  connection  with  the 
other  proof.^ 

An  interesting  case  is  one  cited  in  a  work  on  Medical  Micro- 
scopy, by  Dr.  Joseph  G.  Richardson.  "  A  female  child,  nine 
years  of  age,  was  found  lying  on  the  ground  on  a  small  plantation, 
quite  dead  from  a  wound  in  the  throat.  Suspicion  fell  upon  the 
mother  of  the  girl,  Avho,  upon  being  taken  into  custody,  behaved 
with  the  utmost  coolness  and  admitted  having  taken  her  child 
to  the  plantation  where  the  body  was  found,  Avhence  the  child 
was  lost  while  going  in  quest  of  flowers.  There  was  found  in 
the  woman's  possession  a  large  knife,  which  was  submitted  to 
a  careful  examination.  Nothing  was  found  upon  it,  however, 
with  the  exception  of  a  few  pieces  of  hair  adhering  to  the 
handle  so  small  as  to  be  scarcely  visible.  The  examination 
being  conducted  in  the  presence  of  the  prisoner,  and  the  officer 
remarking  :  '  Here  is  a  bit  of  fur  or  hair  on  the  handle  of  your 
knife,'  the  woman  replied  :  '  Yes,  I  dare  say  there  is,  and  very 
likely  some  stains  of  blood,  for  as  I  came  home  I  found  a  rabbit 
caught  in  a  snare,  and  cut  his  throat  with  the  knife.'  The 
knife  was  sent  to  London,  and,  with  the  particles  of  hair  sub- 
mitted to  a  microscopic  examination.  No  trace  of  blood  could 
at  first  be  detected  upon  the  weapon,  which  appeared  to  have 
been  washed  ;  but  upon  separating  the  horn  handle  from  the 
shaft,  it  was  found  that  a  fluid  had  penetrated  into  the  socket 
which  was  found  to  be  blood,  certainly  not  the  blood  of  a  rab- 
bit, but  bearing  a  resemblance  to  that  of  a  human  body.  The 
hair  was  then  submitted  to  examination.  This  hair  was  found 
by  the  microscopist  to  be  that  of  a  squirrel,  and  round  the 
neck  of  the  child  at  the  time  of  the  murder  there  was  a  tippet 
of  squirrels'  fur."  The  prisoner  was  convicted,  and  before 
being  executed  confessed  her  crime.^ 

In  Ruhenstein's  Case,  blood  was  found  on  the  defendant's 
clothes,  and  the  explanation  was  that  it  was  hens'  blood.     An 

1  People  V.  Johnson,  140  N.  Y.  350. 

\  See  15  Am.  &  Eng.  Encyc.  of  Law,  where  this  case  is  cited. 


l^^O  EXPERT  TESTIMONY. 

expert,  however,  found  the  blood  to  be  that  of  a  mammal. 
There  were  also  found  in  the  blood-spots  pieces  of  corn-husks, 
and  minute  particles  of  earth  which  was  identified  as  the  same 
as  that' of  the  corn-field  in  which  the  murder  was  committed.^ 

The  views  of  Mr.  Justice  Stephen  are  always  entitled  to  the 
greatest  consideration,  and  some  remarks  of  his  bearing  on  the 
general  subject  under  discussion  are  most  appropriate  here. 
Speaking  of  the  law  with  reference  to  the  defence  of  insanity, 
he  says :  "  The  importance  of  the  whole  discussion  as  to  the 
precise  terms  in  which  the  legal  doctrine  on  this  subject  are  to 
be  stated  may  easily  be  exaggerated  as  long  as  the  law  is  ad- 
ministered by  juries.  I  do  not  believe  it  possible  for  a  person 
who  has  not  given  long-sustained  attention  to  the  subject  to 
enter  into  the  various  controversies  which  relate  to  it,  and  the 
result  is  that  juries  do  not  understand  the  summings  up  which 
aim  at  anything  elaborate  or  novel.  The  impression  made  on 
my  mind  by  hearing  many — some  most  distinguished — judges 
sum  up  to  juries  in  cases  of  insanity,  andby  watching  the  juries 
to  ^A^om  I  have  myself  summed  up  on  such  occasions,  is  that 
they  care  very  little  for  generalities.  In  my  experience  they 
are  usually  reluctant  to  convict  if  they  look  upon  the  act  itself 
as,  upon  the  whole,  a  mad  one,  and  to  acquit  if  they  think  it 
was  an  ordinary  crime.  But  their  decision  between  madness 
and  crime  turns  much  more  upon  the  particular  circumstances 
of  the  case,  and.  the  common  meaning  of  words,  than  upon  the 
theories,  legal  or  medical,  which  are  put  before  them.  It  is 
questionable  to  me  whether  a  more  elaborate  inquiry  would 
produce  more  substantial  justice.^ 

The  following  cases  are  remarkable  as  exemplifying  the 
inconclusiveness  of  scientific  evidence,  when  uncorroborated  by 
conclusive  facts,  physical  or  moral : 

A  young  man  was  tried  for  the  murder  of  his  brother,  Avho 
resided  with  their  father  and  overlooked  his  farm.  The 
prisoner,,  who  lived  about  twenty  miles  from  his  father's  house, 
went  on  a  visit  to  him,  and  on  the  day  after  his  arrival  his 
brother  was  found  dead  in  the  stable,  not  far  from  a  vicious 
mare,  vnth.  her  traces  upon  his  arm  and  shoulders  ;  tAvo  other 
horses  were  in  the  stable,  but  they  had  their  traces  on.  Sus- 
picion fell  upon  the  prisoner,  who  was  on  ill  terms  with  his 

1  See  article  by  Dr.  Piper  in  19  Am.  L.  Reg.  (U.  S.)  at  p.  605. 

2  2  Steph.  Qig.  Grim,  Ls^w,  p.  185,  quoted  in  State  v.  Maier,  36  W,  Va.  757. 


EXPERT  TESTIMONY.  171 

brother,  and  the  question  was  whether  the  deceased  had  been 
killed  with  a  spade,  or  by  kicks  from  the  mare.  The  spade  was 
bloody,  but  it  had  been  inadvertently  used  by  a  boy  in  clean- 
ing the  stable  ;  and  the  cause  of  death  could  only  be  determined 
by  the  character  of  the  wounds.  There  were  two  straight 
incised  wounds  on  the  left  side  of  the  head,  one  about  five  and 
the  other  about  two  inches  long,  Avhich  had  apparently  been 
inflicted  by  an  obtuse  instrument.  On  the  right  side  of  the 
head  there  were  three  irregular  wounds,  two  of  them  about 
four  inches  in  length,  partaking  of  the  appearance  both  of 
lacerated  and  incised  wounds.  There  was  also  a  wound  on  the 
back  part  of  the  head,  about  two  inches  and  a  half  long. 
There  was  no  tumefaction  around  any  of  the  wounds,  the 
integuments  adhering  firmly  to  the  bones ;  and,  except  where 
the  wounds  were  inflicted,  the  fracture  of  the  skull  was  general 
throughout  the  right  side,  and  extended  along  the  back  of  the 
head  toward  the  left  side,  and  a  small  part  of  the  temporal 
bone  came  aAvay.  The  deceased  Avas  found  with  his  hat  on, 
which  was  bruised,  but  not  cut,  and  there  were  no  wounds  on 
any  other  part  of  the  body.  Two  surgeons  expressed  a  positive 
opinion  that  the  wounds  could  not  have  been  inflicted  by  kicks 
from  a  horse,  grounding  that  opinion  principally  on  the  distinct- 
ness of  the  wounds,  the  absence  of  contusion,  the  firm  adher- 
ence of  the  integuments,  and  the  straight  lateral  direction  and 
similarity  of  the  wounds  ;  whereas,  as  they  stated,  the  deceased 
would  have  fallen  from  the  first  blow  if  he  had  been  standing, 
and  if  lying  down,  the  wounds  would  have  been  perpendicular ; 
and,,  moreover,  they  were  of  opinion  that  the  wounds  could  not 
have  been  inflicted  if  the  hat  had  been  on  the  deceased's  head 
without  cutting  the  hat,  and  that  he  could  not  have  put  on  his 
hat  after  receiving  any  of  the  wounds.  The  learned  judge, 
however,  stated  that  he  remembered  a  trial  at  the  Old  Baile}^ 
Avhere  it  had  been  proved  that  a  cut  and  a  fracture  had  been 
received  without  having  cut  the  hat ;  and  evidence  was  adduced 
of  the  infliction  of  a  similar  wound  by  a  kick  without  cutting 
the  hat.     The  prisoner  was  acquitted.^ 

A  murder  was  alleged  to  have  been  committed  with  a  shovel, 
and  discolored  spots  were  found  on  the  shovel,  and  also  on  the 
clothes  of  the  deceased.  These  were  subjected  to  chemical 
analysis   and  microscopic   examination  by  different  experts. 

1  Rex  V.  Booth,  Warwick  Spring  Assizes,  1808,  coram  Mr.  Baron  Wood. 


172  EXPERT  TESTIMONY. 

Some  of  those  succeeded  in  finding  well-defined  blood  corpuscles 
indicating  human  blood,  others  failed  to  find  them.  It  was 
instructed  on  the  part  of  the  accused  that  human  blood  could 
not  be  distinguished  from  that  of  many  animals  by  any 
chemical  test  or  scientific  appliance.  In  answer  to  this  the 
court  said  substantially  that  if  scientific  research  gave  no  such 
aid  in  the  discovery  of  a  heinous  crime,  it  was  deplorable. 
Nevertheless,  he  charged  that  if  the  jury  was  satisfied  of  its 
truth,  they  might  lawfully  convict,  upon  proof  of  the  existence 
of  human  blood,  by  the  testimony  of  unlearned  observers. 
And  this  was  approved  by  the  Supreme  Court.^ 

A  woman  who  was  tried  for  the  murder  of  her  mother  had 
lived  for  nine  or  ten  years  as  housekeeper  to  an  elderly  gen- 
tleman, who  was  paralyzed  and  helpless  ;  the  only  other  in- 
mate being  another  female  servant,  who  slept  on  a  sofa  in  his 
bedroom  to  attend  upon  him.  The  deceased  occasionally 
visited  her  daughter  at  her  master's  house,  and  sometimes 
stopped  all  night,  sleeping  on  a  sofa  in  the  kitchen.  She  came 
to  see  her  daughter  about  eight  o'clock  one  night,  in  December, 
1818  ;  the  other  servant  retired  to  bed  about  half -past  nine, 
leaving  the  prisoner  and  her  mother  in  the  kitchen,  and  she 
afterwards  heard  the  prisoner  close  the  door  at  the  foot  of  the 
stairs,  which  was  usually  left  open  that  they  might  hear  their 
master  if  he  wanted  assistance.  About  two  o'clock  in  the 
morning  she  was  aroused  by  the  smeU  of  fire  and  a  sense  of 
suifocation,  and  found  the  bedroom  full  of  smoke  ;  upon  which 
she  ran  downstairs,  the  door  at  the  bottom  of  which  was  still 
closed.  As  she  went  downstairs  she  saw  a  light  in  the  yard, 
and  she  found  the  kitchen  full  of  smoke,  and  very  wet,  par- 
ticularly near  the  fireplace,  as  also  was  the  sofa,  but  there  was 
very  little  fire  in  the  grate.  She  then  unfastened  the  front 
door,  and  ran  out  to  fetch  her  master's  nephew,  who  lived 
near,  and  who,  after  ascertaining  that  his  uncle  was  safe,  went 
into  the  kitchen,  and  threw  some  water  on  the  sofa,  which  Avas 
on  fire.  The  prisoner  then  drank  to  intoxication  from  a  bottle 
of  rum,  and  laid  herself  down  on  the  sofa.  The  pillows  and 
entire  back  part  of  the  sofa-cover  were  burnt  to  the  breadth 
of  the  shoulders.  The  remains  of  the  deceased  were  found 
lying  across  the  steps  of  the  brew-house,  and  on  the  back  of 
the  head  lay  a  piece  of  the  sofa-cover,  and  near  the  body  was 

1  M'Lain  v.  Com.,  99  Pa.  St.  86. 


EXPERT  TESTIMONY.  1Y3 

a  cotton  bag  besmeared  with  oil,  which  had  been  used  indis- 
criminately as  a  bag  or  pillow.  Near  the  feet  of  the  body 
there  were  four  pairs  of  sheets,  Avhich  had  been  in  the  kitchen 
the  night  before,  wet  and  almost  entirely  consumed.  The 
prisoner's  clothes  were  on  a  chair  in  the  kitchen,  and  it  ap- 
peared from  the  state  of  the  bed-clothes  that  she  had  not  been 
in  bed.  A  butter-boat,  which  had  been  full  of  dripping,  and 
a  pint  bottle,  which  had  been  nearly  full  of  lamp-oil,  and  left 
near  the  fire  over  night,  were  both  empty,  and  there  were 
spots  of  grease  and  oil  on  the  pillowcase,  sheets,  and  sofa.  A 
stocking  had  been  hung  up  to  cover  a  crevice  in  the  window- 
shutter,  through  which  any  person  outside  might  have  seen 
into  the  kitchen.  The  door-post  of  the  kitchen  leading  into  the 
yard  was  much  burnt  about  three  feet  high  from  the  ground ; 
and  there  was  a  mark  of  burning  on  the  door-post  of  the  brew- 
house.  The  surface  of  the  body  was  completely  charred,  the 
tongue  was  livid  and  swollen,  and  one  of  the  toes  was  much 
bruised,  as  if  it  had  been  trodden  on.  There  was  a  small 
blister  on  the  inside  of  the  right  leg,  far  below  where  the  great 
burning  commenced,  which  contained  straw-colored  serum, 
but  there  was  no  other  blister  on  any  part  of  the  body,  nor 
any  marks  of  redness  around  the  blister,  or  at  the  parts  where 
the  injured  and  uninjured  tissues  joined.  The  nose,  which 
had  been  a  very  prominent  organ  during  life,  was  flattened 
down  so  as  not  to  rise  more  than  the  eighth  of  an  inch  above 
the  level  of  the  face,  and  as  it  never  recovered  its  original 
appearance,  it  was  stated  that  it  must  have  been  so  flattened 
for  some  time  before  death.  The  lungs  and  brain  were  much 
congested,  and  a  quantity  of  black  blood  was  found  in  the 
right  auricle  of  the  heart.  From  these  facts  the  medical  wit- 
nesses examined  in  support  of  the  prosecution  concluded  that 
the  deceased  had  been  first  suffocated  by  pressing  something 
over  her  mouth  and  nostrils  so  forcibly  as  to  break  and  flatten 
the  nose  in  the  way  described ;  but  they  had  made  no  examin- 
ation of  the  larynx  and  trachea,  and  other  parts  of  the  body. 
A  physician,  who  had  heard  the  evidence  but  not  seen  the 
deceased,  gave  his  opinion  that  the  appearances  described  by 
the  other  witnesses  were  signs  of  death  by  suffocation  ;  that 
the  absence  of  vesication  and  of  the  line  of  redness  Avere  certain 
signs  that  the  body  had  been  burnt  after  death ;  but  he  added 
that,  as  there  were  no  marks  of  external  injury,  an  examina- 


174  EXPERT  TESTIMONY. 

tion  should  have  been  made  of  the  parts  of  the  body  above 
mentioned,  in  order  to  arrive  at  a  satisfactory  conclusion. 
Another  medical  witness  thought  it  possible  that  suffocation 
might  have  been  produced  by  the  flames  preventing  the  access 
of  air  to  the  lungs,  while  others  again  thought  it  impossible 
that  such  could  have  been  the  case,  as  no  screams  had  been 
heard  in  the  night,  and  they  were  also  of  opinion  that  if  alive 
the  deceased  must  have  been  in  such  intense  agony  that  she 
could  not,  if  she  had  been  strong  enough  to  walk  from  the 
kitchen  to  the  brew-house,  have  refrained  from  screaming. 
One  of  these  witnesses  stated  that  he  did  not  think  it  possible 
that  the  deceased,  if  alive,  could  have  fallen  in  the  position  in 
which  she  was  found,  as  her  first  impulse  would  have  been  to 
stretch  out  her  arms  to  prevent  a  fall ;  but,  on  the  other  hand, 
it  was  urged  that  it  was  not  possible  to  judge  of  the  acts  of  a 
person  in  the  last  agonies  of  death  by  the  conduct  of  one  in 
full  life.  Under  the  will  of  her  grandfather  the  prisoner  was 
entitled,  in  expectancy  on  the  demise  of  her  mother,  to  the 
sum  of  £200,  and  to  the  interest  of  the  sum  of  £300,  for  her 
life.  She  had  frequently  cruelly  beaten  the  old  woman, 
threatened  to  shorten  her  days,  bitterly  reproached  her  for 
keeping  her  out  of  her  property  by  living  so  long,  and  declared 
that  she  should  never  be  happy  so  long  as  she  was  above 
ground,  and  she  had  once  attempted  to  choke  her  by  forcing 
a  handkerchief  down  her  throat,  but  was  prevented  from 
doing  so  by  the  other  ser\tint.  The  magistrates  had  been  fre- 
quently appealed  to,  but  they  could  only  remonstrate,  as  the 
old  woman  would  not  appear  against  her  unnatural  daughter. 
The  case  set  up  on  behalf  of  the  prisoner  was,  that  she  was  in 
bed,  and  perceiving  a  smell  of  fire,  came  downstairs,  and  find- 
ing the  sofa  on  fire,  fetched  water  and  extinguished  it,  and 
that  she  knew  nothing  of  her  mother's  death  until  she  heard 
of  it  from  others.  It  appeared  that  the  old  woman  was  gen- 
erally very  chilly,  and  in  the  habit  of  getting  near  the  fire ; 
that  on  two  former  occasions  she  had  burned  portions  of  her 
dress  ;  that  on  another  she  had  burned  the  corner  of  the  sofa- 
cushion  ;  that  she  used  to  smoke  in  bed,  and  light  her  pipe 
with  lucifer  matches,  which  she  carried  in  a  basket ;  and  that 
on  the  night  in  question  she  had  brought  her  pipe,  which  was 
found  on  the  following  morning  in  her  basket.  It  was  urged 
as  the  probable  explanation  of  the  position  in  which  the  body 


EXPERT  TESTIMONY.  175 

was  found,  that,  finding  herself  on  fire,  she  must  have  pro- 
ceeded to  the  brew-house,  where  she  knew  there  was  water, 
and  leaned  in  her  way  there  against  the  door-post,  and  that, 
feeling  cold  in  the  night,  she  had  wrapped  the  sheets  around 
her,  and  did  not  throw  them  off  until  she  reached  the  yard. 
The  prisoner,  though  accustomed  to  sleep  upstairs,  was  in  the 
habit  of  undressing  in  the  kitchen,  which  was  stated  to  be  the 
reason  why  the  stocking  had  been  so  placed  as  to  prevent  any 
person  from  seeing  into  the  kitchen.  Mr.  Justice  Patteson, 
in  his  charge  to  the  jury,  characterized  the  evidence  of  the 
medical  practitioners  who  had  examined  the  body  as  extremely 
unsatisfactory  in  consequence  of  the  incompleteness  of  their 
examination ;  the  opinion  of  the  physician  who  had  not  seen 
the  body  was  also,  he  said,  very  unsatisfactory,  as  substituting 
him  for  the  jury ;  that  he  had  only  expressed  his  opinion  as 
founded  upon  the  facts  stated  by  the  other  witnesses  ;  that  if 
he  had  seen  the  body  himself,  his  views  might  have  been  ma- 
terially different ;  that  the  other  witnesses  might  have  omitted 
to  mention  particulars  which  he  might  deem  of  the  greatest 
importance,  but  on  which  they  looked  as  of  no  significance ; 
that,  therefore,  opinions  expressed  on  such  partial  statements 
ought  to  be  received  with  the  greatest  reluctance  and  suspi- 
cion ;  that  he  had  always  had  a  strong  opinion  against  such 
evidence,  as  tending  to  encroach  upon  the  proper  duty  of 
juries ;  and  he  recommended  them  to  exercise  their  own  judg- 
ment upon  the  other  evidence  in  the  case,  without  yielding  it 
implicitly  to  the  authority  of  this  witness.  The  jury  acquitted 
the  prisoner ;  and  indeed  it  would  have  been  contrary  to  all 
principle  to  do  otherwise,  in  the  midst  of  so  much  uncertainty 
as  to  the  corpus  delicti} 

In  a  Maryland  case  commented  on  in  a  recent  legal  publica- 
tion, one,  Mrs.  F.,  was  charged  with  having  given  her  husband 
strychnine,  from  the  effects  of  which  he  died  in  con\'Tilsions 
several  hours  later.  The  evidence  introduced  in  the  early 
stages  of  the  trial  seemed  sufficient  to  justify  a  verdict  of 
guilty.  But  subsequently  many  days  were  spent  in  the  exam- 
ination and  cross-examination  of  expert  witnesses.     "  Thence- 

'  Reg.  V.  Newton,  Salop  Spring  Ass.  1850.  Two  former  jurors,  at  the 
assizes  in  the  preceding  year,  had  been  unable  to  agree,  and  had  been  dis- 
charged, a  circumstance  unparalleled,  it  is  believed,  in  English  jurisprud- 
ence. 


17G  EXPERT  TESTIMONY. 

forward  the  case  became  a  sort  of  tournament  between  experts, 
protracted  to  an  enormous  length  and  unrivalled  in  personal 
bitterness.  When  they  had  finished,  the  most  careful  reader 
was  at  sea.  They  differed  about  everything  ;  they  flatly  con- 
tradicted each  other  about  every  symptom  of  strychnine- 
poisoning  ;  they  even  created  a  reasonable  doubt  as  to  whether 
it  was  ever  possible  in  any  case  to  say  that  a  person  had  been 
killed  with  strychnine.  As  a  result  the  prisoner  was  ac- 
quitted, and  has  ever  since  been  regarded  as  a  much  persecuted 
woman."  ^ 

1  The  West  Va.  Bar  (1895),  207. 


DIVISION  IL 

EXTRINSIC    AND    MECHANICAL    INCULPATORY 
INDICATIONS. 


INTRODUCTORY  REMARKS. 

Inculpatory  circumstances  of  an  extrinsic  and  mechanical 
nature  are  such  as  are  derived  from  the  phj^sical  peculiari- 
ties and  characteristics  of  persons  and  things,  from  facts  and 
objects  which  bear  a  relation  to  our  corporeal  nature,  and 
are  apparently  independent  of  moral  indications.  Such  facts 
are  intimately  related  to,  and,  as  it  were,  dovetail  with,  the 
corpus  delicti  ;  and  they  are  the  links  which  establish  the 
connection  between  the  guilty  act  and  its  imisible  moral 
origin. 

It  rarely  happens  in  practice  that  circumstantial  proofs  con- 
sist purely  in  mere  natural  and  mechanical  coincidences, 
unconnected  with  any  of  a  moral  nature  and  conclusive 
tendency.  But — and  happy  it  is  for  the  interests  of  society 
— forcible  injuries  can  seldom  be  perpetrated  without  leaving 
many  and  plain  vestiges  by  which  the  guilty  agent  may  be 
traced  and  detected. 

There  are  no  existing  relations,  natural  or  artificial,  no  occur- 
rences or  incidents  in  the  course  of  nature  or  dealings  of 
society,  which  may  not  constitute  the  materials  of  proof,  and 
become  important  links  in  the  chain  of  evidence.^ 

It  is  impossible,  therefore,  even  to  classify,  and  still  less  to 
attempt  an  enumeration  of,  evidentiary  facts  of  the  kind  in 
question,  except  in  a  very  general  way  ;  but  it  may  be  inter- 
esting and  instructive,  by  way  of  illustration,  to  advert  to  some 
of  the  principal  heads  of  such  evidence,  and   to  some  remark- 

1  Starkie  on  Evidence  (10th  Am.  Ed.),  844. 
12  177 


178  INTRODUCTORY  REMARKS. 

able  cases  which  have  occurred  in  the  records  of  our  criminal 
jurisprudence.  One  important  and  admonitory  result  of  such 
an  enumeration  will  be  to  show  that  all  such  facts  are  unavoid- 
ably associated  with  attendant  sources  of  error  and  fallacy. 

The  principal  facts  of  circumstantial  evidence,  of  an  external 
character,  relate  to  questions  of  identity,  of  person ;  of  things  ; 
of  handwriting ;  and  of  time  ;  but  there  must  necessarily  be 
a  number  of  isolated  facts  which  admit  of  no  specific  classifi- 
cation. 


i 


I 


CHAPTER  I. 

IDENTIFICATION  OF  PERSON. 

In  the  investigation  of  every  allegation  of  legal  crime,  it  is 
fundamentally  requisite  to  establish,  by  direct  or  circumstan- 
tial evidence,  the  identity  of  the  individual  accused  as  the 
party  who  committed  the  imputed  offence. 

Identity  may  be,  and  indeed  very  often  must  be,  proved  by 
circumstantial  evidence.^  Any  circumstance  which  is  calculated 
to  elucidate  the  transaction,  and  which  tends  to  make  the  prop- 
osition at  issue  more  or  less  probable,  may  be  given  in  evi- 
dence. No  matter  how  slight  may  be  the  inference  of  identity 
to  be  drawn  from  any  single  fact,  it  is  admissible  as  a  frag- 
ment of  the  material  from  which  the  deduction  is  to  be  made.^ 
No  definite  line  of  demarcation  can  be  drawn  with  regard  to 
facts  proximate  and  remote.  The  test  is,  do  they  tend  to 
throw  light  upon  the  transaction  ?  ^  An  objection  on  the 
ground  of  remoteness  goes  merely  to  the  effect  of  the  evidence.* 
On  an  indictment  for  murder,  where  the  prisoner  was  a  white 
man,  and  several  witnesses  had  sworn  that  the  person  who  had 
done  the  shooting  was  a  negro,  a  witness  who  had  seen  the 
prisoner  a  little  while  after  the  murder  was  allowed  to  testify 
that  he  at  that  time  noticed,  around  the  defendant's  neck,  a 
dark,  greasy  appearance,  as  of  blacking  poorly  washed  off. 
There  was  much  other  contradictory  evidence  in  the  case,  but 
the  defendant  was  convicted.^ 

It  might  be  concluded,  by  persons  not  conversant  with 
judicial  proceedings,  that  identification  is  seldom  attended  with 
serious  difficulty,  but  such  is  not  the  case.     Illustrations  are 

1  Rooker  v.  Rooker,  13  W.  R.  807. 

2  Whart.  Cr.  Ev.  §§  21,  34  ;  McCann  v.  State,  13  Sm.  &  M.  471  :  Johnson 
V.  Com.,  115  Pa.  369;  7  Cent.  608. 

8  Simms  v.  State.  10  Tex.  Crim.  App.  131. 

*  State  V.  Chambers,  45  La.  Ann.  11  So.  944. 

*  Walker  v.  State,  6  Tex.  Crim.  App.  576. 

179 


180  IDENTIFICATION  OF  PERSON. 

numerous  to  show  that  what  are  supposed  to  be  the  clearest 
intimations  of  the  senses  are  sometimes  fallacious  and  de- 
ceptive, and  some  extraordinary  cases  have  occurred  of  mis- 
taken personal  identity.^  Hence  the  particularity,  and,  as 
unreflecting  persons  too  hastily  conclude,  the  frivolous 
minuteness  of  inquiry,  by  professional  advocates,  as  to  the 
causa  scientice,  in  cases  of  controverted  identity,  whether  of 
persons  or  of  things. 

On  a  trial  for  the  theft  of  certain  municipal  bonds  of  the 
city  of  Cincinnati  a  witness  for  the  State  testified  that  he  had 
purchased  the  bonds  from  a  person  answering  in  general  the 
personal  appearance  of  the  defendant.  The  defendant  then 
introduced  one  Y.,  who  testified  that  at  the  time  when  the 
former  witness  said  that  he  had  purchased  the  bonds,  V.  was 
in  the  same  city,  and  met  on  the  street  a  person  who  was  a 
stranger  to  him,  but  who  so  strongly  resembled  the  defendant 
that  he  twice  approached  the  person  with  the  intention  of 
addressing  him,  and  did  not  discover  the  mistake  till  he  had 
approached  near  enough  to  extend  his  hand  for  the  purpose 
of  shaking  hands.^ 

Where  one  was  indicted  for  adultery  with  S.,  a  government 
witness,  whose  house  was  within  90  feet  of  the  house  of  S., 
testified  that  frequently  in  the  summer  and  fall  of  1878, 
between  eight  and  nine  in  the  evening,  she  saw  the  defendant 
go  to  the  house  of  S.  and  call  her  out  and  stand  at  the  gate 
talking  with  her,  and  that  once  they  walked  towards  the  ship- 
yard together.  The  defendant  denied  the  truth  of  this,  and 
to  corroborate  his  statement  and  discredit  the  statement  of 
the  government  witness,  called  another  witness  who  lived 
neai'er  the  house  of  the  alleged  paramour  than  the  former 
witness,  who  was  willing  to  testify  that  during  the  same  sum- 
mer and  fall,  in  the  evening,  she  had  several  times  seen  a  man, 
who  was  not  the  defendant,  call  S.  out  and  stand  with  her  at 
the  gate,  and  afterwards  walk  to  the  shipyard  with  her.  This 
Avas  excluded,  but  should  have  been  admitted.^ 

Two  men  were  convicted  before    Mr.  Justice  Grose  of  a 

1  Rex  V.  Wood  and  Brown,  ut  supra,  33  ;  Rex  v.  Coleman,  ut  supra,  68, 
82  ;  Reg.  v.  Markham,  sentenced  to  four  years'  penal  servitude  for  uttering 
a  forged  check,  O.  B.  1856,  but  subsequently  pardoned  on  the  conviction  of 
the  real  offender. 

2  White  V.  Com.,  80  Ky.  480. 

8  State  V.  Witham,  73  Me.  531. 


IDENTIFICATION  OF  PERSON,  181 

murder,  and  executed ;  and  the  identity  of  the  prisoners  was 
positively  sworn  to  by  a  lady  who  was  in  company  with  the 
deceased  at  the  time  of  the  robbery  and  murder ;  but  several 
years  afterwards  two  men,  who  suffered  for  other  crimes,  con- 
fessed at  the  scaffold  the  commission  of  the  murder  for  which 
these  persons  were  executed.^ 

A  young  man  was  tried  at  the  Old  Bailey,  July,  1824,  on 
five  indictments  for  different  acts  of  theft.  It  appeared  that 
a  person  resembling  the  prisoner  in  size  and  general  appearance 
had  called  at  various  shops  in  the  metropolis  for  the  purpose  of 
looking  at  books,  jewelry,  and  other  articles,  with  the  pretended 
intention  of  making  purchases,  but  made  off  with  the  property 
placed  before  him  while  the  shopkeepers  were  engaged  in  look- 
ing out  other  articles.  In  each  of  these  cases  the  prisoner  was 
positively  identified  by  several  persons,  while  in  the  majority 
of  them  an  alibi  was  as  clearly  and  positively  established,  and 
the  young  man  was  proved  to  be  of  orderly  habits  and  irre- 
proachable character,  and  under  no  temptation  from  want  of 
money  to  resort  to  acts  of  dishonesty.  Similar  depredations  on 
other  tradesmen  had  been  committed  by  a  person  resembling 
the  prisoner,  and  those  persons  deposed  that,  though  there  was 
a  considerable  resemblance  to  the  prisoner,  he  was  not  the 
person  who  had  robbed  them.  He  was  convicted  upon  one 
indictment,  but  acquitted  on  all  the  others;  and  the  judge 
and  jurors  who  tried  the  last  three  cases  expressed  their 
conviction  that  the  witnesses  had  been  mistaken,  and  that  the 
prosecutor  had  been  robbed  by  another  person  resembling  the 
prisoner.  A  pardon  was  immediately  procured  in  respect  of  that 
charge  on  which  the  conviction  had  taken  place.^ 

A  few  months  before  the  last-mentioned  case,  a  respectable 
young  man  was  tried  for  a  highway  robbery  committed  at 
Bethnal  Green,  in  which  neighborhood  both  he  and  the  pros- 
ecutor resided.  The  prosecutor  swore  positively  that  the 
prisoner  was  the  man  who  robbed  him  of  his  watch.  A  young 
woman,  to  whom  the  prisoner  paid  his  addresses,  gave  evidence 
which  proved  a  complete  alibi.  The  prosecutor  was  then  or- 
dered out  of  court,  and  in  the  interval  another  young  man,  who 
awaited  his  trial  on  a  capital  cliarge,  was  introduced  and  placed 
by  the  side  of  the  j^risoner.     The  prosecutor  was  again  put 

1  Rex  V.  Clinch  and  Mackley,  3  P.  &  F.  144,  and  Sess.  Pap.,  1797. 

2  Rex  V.  Robinson,  Old  Bailey,  Sessions  Papers,  1824. 


182  IDENTIFICATION  OF  PERSON. 

into  the  witness-box,  and  addressed  by  the  prisoner's  counsel 
thus :  "  Remember,  the  life  of  this  young  man  depends  upon 
your  reply  to  the  question  I  am  about  to  put :  "Will  you  swear 
again  that  the  young  man  at  the  bar  is  the  person  who  assaulted 
and  robbed  you  ? "  The  witness  turned  his  head  toward  the 
dock,  when  beholding  two  men  so  nearly  alike,  he  dropped  his 
hat,  became  speechless  with  astonishment  for  a  time,  and 
at  length  declined  swearing  to  either.  The  prisoner  was  of 
course  acquitted.  The  other  young  man  was  tried  for  another 
offence  and  executed,  and  before  his  death  acknowledged  that 
he  had  committed  the  robbery  in  question,^  Upon  a  trial  for 
burglary,  where  there  was  conflicting  evidence  as  to  the  iden- 
tity of  the  prisoner,  Mr.  Baron  Boll  and,  after  remarking  upon 
the  risk  incurred  in  pronouncing  on  evidence  of  identity  exposed 
to  such  doubt,  said  that  when  at  the  bar  he  had  prosecuted  a 
woman  for  child-stealing,  tracing  her  by  eleven  witnesses  buy- 
ing ribbons  and  other  articles  at  various  places  in  London,  and 
at  last  into  a  coach  at  Bishopsgate,  whose  evidence  was  con- 
tradicted by  a  host  of  other  witnesses,  and  she  was  acquitted  ; 
and  that  he  had  afterwards  prosecuted  the  very  woman  who 
really  stole  the  child,  and  traced  her  by  thirteen  witnesses. 
"  These  contradictions,"  said  the  learned  judge,  "  make  one 
tremble  at  the  consequences  of  relying  on  evidence  of  this  nature, 
unsupported  by  other  proof."  ^ 

As  incidental  to  the  establishment  of  identity,  the  quantity 
of  light  necessary  to  enable  a  witness  to  form  a  satisfactory 
opinion  has  occasionally  become  the  subject  of  discussion.  A 
man  Avas  tried  in  January,  1799,  for  shooting  at  three  Bow 
Street  officers,  who,  in  consequence  of  several  robberies  having 
been  committed  near  Hounslow,  were  employed  to  scour  that 
neighborhood.  They  were  attacked  in  a  post-cliaise  by  two 
persons  on  horseback,  one  of  whom  stationed  himself  at  the 
head  of  the  horses,  and  the  other  went  to  the  side  of  the  chaise. 
One  of  the  officers  stated  that  the  night  Avas  dark,  but  that 
from  the  flash  of  the  pistols  he  could  distinctly  see  that  one  of 
the  robbers  rode  a  dark  broAvn  horse,  between  thirteen  and 
fourteen  hands  high,  of  a  very  remarkable  shape,  having  a 
square  head  and  thick  shoulders ;  that  he  could  select  him  out 
of  fifty  horses,  and  had  seen  him  him  since  at  a  stable  in  Long 

1  3  P.  &  F.  143  ;  Amos'  Great  Oyer  of  Poisoning,  365. 

2  Rex  V.  Sawyer,  Reading  Ass. 


IDENTIFICATION  OF  PERSON.  183 

Acre  ;  and  that  he  also  perceived  that  the  person  at  the  side 
glass  had  on  a  rough  shag  great-coat.^  Similar  evidence  was 
given  on  a  trial  for  high  treason ;  ^  and  in  a  case  of  burglary 
before  the  Special  Commission  at  York,  January,  1813,  a 
witness  stated  that  a  man  came  into  his  room  in  the  night, 
and  caused  a  light  by  striking  on  the  stone  floor  with  some- 
thing like  a  sword,  which  produced  a  flash  near  his  face,  and 
enabled  him  to  observe  that  his  forehead  and  cheeks  were 
blacked  over  in  streaks,  that  he  had  on  a  dark-colored  top  coat 
and  a  dark-colored  handkerchief,  and  was  a  large  man,  from 
which  circumstances,  and  from  his  voice,  he  believed  the  pris- 
oner to  be  the  same  man.^  In  another  case  a  gentleman  who 
was  shot  at  while  driving  home  in  his  gig,  and  wounded  in  the 
elbow,  stated  that  when  he  observed  the  flash  of  the  gun,  he 
saw  that  it  was  levelled  towards  him,  and  that  the  light 
enabled  him  to  recognize  at  once  the  features  of  the  accused. 
On  cross-examination  he  stated  that  he  was  quite  sure  he  could 
see  him,  and  that  he  was  not  mistaken  as  to  his  identity ;  but 
the  prisoner  was  acquitted.* 

The  liability  to  mistake  must  necessarily  be  greater  where 
the  question  of  identity  is  matter  of  deduction  and  inference, 
than  where  it  is  the  subject  of  direct  evidence.  The  law,  rec- 
ognizing this  liability  to  mistake,  has  wisely  provided  that  in 
questions  of  identity  a  witness  may  testify  that  he  helieves  the 
person  to  be  the  same,  that  it  is  not  necessary  to  swear  posi- 
tively. The  degree  of  credit  to  be  attached  to  the  testimony  is 
for  the  jury  to  determine.^  The  circumstances  from  which 
identity  may  be  thus  inferred  are  innumerable,  and  admit  of 
only  a  very  general  classification,  of  which  the  following  are 
perhaps  the  most  remarkable  heads. 

Family  likeness  has  often  been  insisted  upon  as  a  reason  for 

1  Rex  V.  Haines,  3  P.  &  F.  144. 

2  Rex  V.  Byrne,  18  St.  Tr.  819. 

3  Rex  V.  Brook,  31  St.  Tr.  1135,  1137  ;  but  see  "  Traite  de  la  Preuve,"  par 
Desquiron,  274,  where  it  is  stated  that  after  the  condemnation  of  a  man  for 
murder,  on  the  testimony  of  two  witnesses,  who  deposed  that  they  recog- 
nized him  by  the  light  from  the  discharge  of  a  gun,  experiments  were 
made,  from  which  it  appeared  that  such  recognition  was  impossible. 

*  Reg.  V.  White,  Croydon  Summer  Assizes,  1839  ;  Taylor's  Medical  J.  331 
(4th  Edition). 

6  1  Greenl.  on  Ev.  §  440  ;  State  v.  Howard,  118  Mo.  127  ;  Watson  v.  Brew- 
ster, 1  Barr,  381 ;  Dodge  v.  Bacbe,  57  Pa.  St.  421 ;  Carmalt  v.  Post,  8  Wright, 
406  ;  People  v.  Williams,  29  Hun,  520  ;  State  v.  Dickson,  78  Mo.  438. 


184  IDENTIFICATION  OF  PERSON. 

inferring  parentage  and  identity.  In  the  Douglas  case  Lord 
Mansfield  said : . "  I  have  always  considered  likeness  as  an 
argument  of  a  child's  being  the  son  of  a  parent ;  and  the 
rather  as  the  distinction  between  individuals  in  the  human 
species  is  more  discernible  than  in  other  animals  ;  a  man  may 
survey  ten  thousand  people  before  he  sees  two  faces  perfectly 
alike,  and  in  an  army  of  a  hundred  thousand  men  every  one 
may  be  known  from  another.  If  there  should  be  a  like- 
ness of  feature,  there  may  be  a  discriminancy  of  voice,  a  differ- 
ence in  the  gestures,  the  smile,  and  other  various  things ; 
whereas  a  family  likeness  runs  generally  through  all  these,  for 
in  everything  there  is  a  resemblance,  as  of  features,  size,  atti- 
tude, and  action."  ^  But  in  a  case  in  Scotland,  w^here  the 
question  was  who  was  the  father  of  a  certain  woman,  an  alle- 
gation that  she  had  a  strong  resemblance  in  the  features  of  the 
face  to  one  of  the  tenants  of  the  alleged  father,  was  held  not  to 
be  relevant,  as  being  too  much  a  matter  of  fancy  and  loose 
opinion  to  form  a  material  article  of  evidence ;  ^  and  in  another 
Scotch  case,  a  trial  for  child-murder,  it  was  permitted,  after 
proof  that  the  child  had  six  toes,  to  ask  a  witness  whether  any 
members  of  the  prisoner's  family  had  supernumerary  fingers 
and  toes ;  though  the  inference  to  be  deduced  was  evidently 
only  a  matter  of  opinion.^  In  an  early  case  in  Maine,  in  bas- 
tardy proceedings,  general  evidence  of  resemblance  of  the 
child  to  the  defendant  was  excluded,  because  mere  matter  of 
opinion  ;  the  object  of  the  evidence  not  being  to  show  color  or 
any  particular  conformation.* 

A  case  of  capital  conviction  occurred  some  years  ago  where 
the  prisoner  had  given  his  portrait  to  a  youth,  which  enabled 
the  police,  after  watching  a  month  in  London,  to  recognize 
and  apprehend  him ;  ^  and  photographic  likenesses  now  fre- 
quently lead  to  the  identification  of  offenders.  A  photograph 
of  defendant  taken  shortly  after  his  arrest  was  not  long  since 
permitted  to  be  introduced  for  the  pur2)ose  of  identification, 
though  he  had  in  the  meantime  grown  a  beard.^     Witnesses 

1  Collectanea  Juridica,  402  ;  Beck's  Medical  Jurisprudence,  371.  And  see 
Report  of  the  case  of  Doe  dem.  of  Day  v.  Day,  Huntington  Assizes,  July, 
1793.  2  Riitledge  v.  Carruthers,  Tait's  L.  of  Ev.  443. 

3  Dickson's  L.  of  Ev.  ut  supra,  14. 

*  Keniston  v.  Rowe,  16  Me.  38. 

*  Rex  V.  Arden,  8  London  Med.  Gaz.  36. 

«  State  V.  Ellwood,  17  R.  I.  763.  •  ■      ' 


IDENTIFICATION  OF  PERSON.  185 

who  had  been  present  at  the  first  marriage  were  shown  the 
photograph  of  the  bridegroom  to  enable  them  to  identify  the 
defendant  on  trial  for  bigamy.^ 

It  is  well  known  that  shepherds  readily  identify  their  sheep, 
however  intermingled  with  others ;  ^  and  offenders  are  not 
unfrequently  recognized  by  the  voice.^  The  degree  of  cer- 
tainty of  identification  by  this  method  does  not  depend  upon 
the  ability  of  the  witness  to  describe  its  peculiarities.  It  is 
for  the  jury  only  to  determine  how  much  reliance  should  be 
placed  upon  such  testimony.*  To  illustrate  the  value  of  such 
evidence  some  remarks  made  by  Mr.  Justice  Sherwood  on  a 
trial  for  murder  are  subjoined.  To  support  the  defence,  which 
was  that  of  an  alibi ^  a  witness  was  examined  Avho  testified 
that  about  the  time  Avhen  the  prisoner  was  said  to  have  been 
having  the  altercation  "with  the  deceased,  she  heard  him  pass- 
ing her  house,  some  miles  distant  from  the  place  of  the  crime. 
The  court  ruled  out  the  testimony  given  by  the  witness  as  to 
the  reason  why  she  knew  the  person  whose  voice  she  heard  to 
be  the  prisoner.  And  it  was  held  that  this  was  error.  The 
learned  judge,  delivering  the  opinion  of  the  court,  said : 
"  There  is  no  reason  why  rules  governing  and  relied  upon  by 
prudent  and  intelligent  men  in  the  transaction  of  the  most  im- 
portant business  of  life  should  not  be  applied  and  made  to  gov- 
ern in  courts  of  justice  in  the  trial  of  causes  where  life  has 
been  taken  and  is  to  be  answered  for."  *  And  it  has  been  held 
proper  on  a  trial  for  homicide  to  admit  the  evidence  of  a  wit- 
ness who  testified  that  a  few  minutes  after  the  commission  of 
the  crime  he  heard  some  one  whose  voice  sounded  like  the 
defendant's  say  that  he  had  Idlled  a  man.^ 

Circumstances  frequently  contribute  to  identification,  by 
confining  suspicion  and  limiting  the  range  of  inquiry  to  a  class  of 
persons ;  as  where  crimes  have  been  committed  by  left-handed 
persons ;  ^  or  where,  notwithstanding  simulated  appearances  of 

1  Reg.  V.  Folsom,  4  F.  &  F.  103.  As  to  the  use  of  photography  to  assist 
in  identification,  see  1  Am.  L.  Reg.  &  Rev.  (N.  S.)  813  ;  31  Cent.  L.  J.  414. 

^  Rex  t'.  Oliver,  1  Syme's  Justiciary  Rep.  224. 

3  Rex  V.  Brook,  31  St.  Tr.  1135;  Com.  v.  McMahon,  145  Pa.  St.  413; 
Cicero  v.  State,  54  Ga.  156  ;  Johnson  v.  Com.,  115  Pa.  360. 

*  Com.  V.  Williams,  105  Mass.  62.  ^  People  v.  Hare,  57  Mich.  505. 

6  Deal  V.  State  (Ind.),  39  N.  E.  930. 

^  Rex  V.  O'Kernan  et  al. ,  ut  supra,  91  ;  Rex  v.  Richardson,  Rex  v.  Patch, 
infra. 


186  IDENTIFICATION  OF  PERSON, 

external  violence  and  infraction,  the  offenders  must  have  been 
domestics ;  as  in  the  case  mentioned  on  a  former  page,  of  two 
persons  convicted  of  murder,  Avho  created  an  alarm  from  within 
the  house ;  but  upon  whom,  nevertheless,  suspicion  fell,  from 
the  circumstance  that  the  dew  on  the  grass  surrounding  the 
house  had  not  been  disturbed  on  the  morning  of  the  murder, 
which  must  have  been  the  case  had  it  been  committed  by  any 
other  than  inmates.^  On  the  trial  of  a  gentleman's  valet  for 
the  murder  of  his  master,  it  appeared  that  there  ^vere  marks 
on  the  back  door  of  the  house,  as  if  it  had  been  broken  into, 
but  the  force  had  been  applied  from  within,  and  the  only  w^ay 
by  which  this  door  could  be  approached  from  the  back  was 
over  a  wall  covered  with  dust,  which  lay  undisturbed,  and 
over  some  tiling,  so  old  and  perished  that  it  would  not  have 
borne  the  weight  of  a  man ;  so  that  the  appearance  of  bur- 
glarious entry  must  have  been  contrived  by  a  domestic,  and 
other  facts  conclusively  fixed  the  prisoner  as  the  murderer.^ 
Where  the  evidence  is  purely  circumstantial  the  jury  may  con- 
sider the  fact  that  there  is  nothing  tending  to  show  that  any 
other  person  committed  or  has  been  charged  with  the  crime.^ 
Though  it  is  not  necessary  to  a  conviction  in  any  case  to 
show  that  it  was  not  in  the  power  of  any  other  person  than 
the  accused  to  commit  the  crime,  it  being  sufficient  to  prove 
beyond  a  reasonable  doubt  that  the  accused  was  guilty.* 

Identification  is  often  satisfactorily  inferred  from  the  cor- 
respondence of  fragments  of  garments,  or  of  written  or  printed 
papers,  or  of  other  articles  belonging  to,  or  found  in  the  pos- 
session of  parties  charged  with  crime,  with  other  portions  or 
fragments  discovered  at  or  near  the  scene  of  crime,  or  other- 
wise related  to  the  corptos  delicti.^  The  admissibility  of  such 
evidence  is  too  well  settled  to  admit  of  controversy.^  On  a  trial 
for  burglary  a  piece  of  wrapping  paper  was  found  where  the 
culprits  had  stopped  in  the  road  near  the  house  entered.  This 
paper  corresponded  in  quality  with  the  paper  in  which  a  deck 
of  cards,  found  in  the  prisoner's  pocket  w^hen  he  "was  arrested, 

1  Rex  V.  Jeflferys  and  Swan,  tit  supra  ;  Rex  v.  Schofield,  31  St.  Tr.  1061. 
And  see  Mascardus,  ut  supra,  Concl.  CCLXXII. 

2  Reg.  V.  Courvoisier,  infra. 

«  Shepherd  v.  State,  10  So.  663. 

4  Com.  V.  Leach,  34  Cent.  L.  J.  429  ;  156  Mass.  99. 

*  Mascardus,  ut  supra,  Concl.  dcccxxxi. 

»  Meyers  v.  State,  14  Tex.  Crim.  App. 


ibENTIFICATION  OF  PERSON.  J  §7 

was  wrapped.  It  appeared  that  there  had  been  a  piece  torn 
off  of  the  paper  which  was  around  the  cards,  but  it  was  not 
shown  that  the  borders  of  the  two  pieces  corresponded. 
There  was,  however,  other  evidence,  which,  together  with  this 
mentioned,  made  out  a  satisfactory  case  against  the  prisoner.^ 
A  woman  who  was  tried  for  setting  the  prosecutor's  ricks  on 
fire  had  been  met  near  the  ricks,  about  two  hours  after  mid- 
night, and  a  tinder-box  was  found  near  the  spot  containing 
some  unburnt  cotton  rag,  as  also  a  piece  of  a  woman's  necker- 
chief in  one  of  the  ricks  where  the  fire  had  been  extinguished. 
The  piece  of  cotton  in  the  tinder-box  was  examined  with  a 
lens,  and  the  witness  deposed  that  it  was  of  the  same  fabric 
and  pattern  as  a  govm  and  some  pieces  of  cotton  print  taken 
from  the  prisoner's  box  at  her  lodgings  ;  that  a  neckerchief 
taken  from  a  bundle  belonging  to  the  prisoner,  found  in  her 
lodgings,  corresponded  with  the  color,  pattern,  and  fabric  of 
the  piece  found  in  the  rick,  and  that  they  had  both  belonged 
to  the  same  square ;  and  from  the  breadth  of  the  hemming, 
and  the  distance  of  the  stitches  on  both  pieces,  as  well  as  from 
the  circumstance  that  both  pieces  were  hemmed  with  black 
sewing  silk  of  the  same  quality  (whereas  articles  of  that  de- 
scription are  generally  sewed  with  cotton),  he  clearly  inferred 
that  they  were  the  work  of  the  same  person.  The  prisoner 
was  capitally  convicted,  but  there  being  reason  to  believe  that 
she  was  of  unsound  mind,  she  was  reprieved.^ 

There  being  evidence,  on  a  trial  for  robbery,  tending  to 
show  that  defendants  were  the  robbers,  testimony  of  one 
who  sold  two  men  some  articles  of  clothing  two  days  before 
the  robbery  like  those  left  by  the  robbers  in  the  house  was 
admitted.3  A  man  was  connected  with  the  robbery  of  a  bank 
by  the  fragment  of  a  key  found  in  the  lock  of  one  of  the 
safes,  which  an  ironmonger  proved  that  he  had  shortly  before 
made  for  the  prisoner,*  and  a  servant-man  was  identified  with 
the  larceny  of  a  number  of  sovereigns  l^y  the  discovery,  in  the 
lock  of  a  bureau  which  had  been  broken  open,  of  a  small  piece 
of  steel  which  had  formed  part  of  the  blade  of  a  knife  belong- 

1  Gregory  v.  State,  80  Ga.  603. 

2  Rex    V.   Hodges,  Warwick    Spring  Assizes,  1818,    coram  Mr.    Baron 
Garrow. 

3  Cora.  V.  Scott,  123  Mass.  222. 

*  Rex  V,  Heath,  Alison's  Frin.,  ut  supra,  318. 


188  IDENTIFICATION  OF  PERSON. 

ing  to  him.i  In  a  case  of  burglary  the  thief  had  gained  admit- 
tance to  the  house  by  opening  a  window  by  means  of  a  pen- 
knife, which  was  broken  in  the  attempt,  and  part  was  left  in 
the  wooden  frame  ;  the  broken  knife  was  found  in  the  pocket  of 
the  prisoner  and  perfectly  corresponded  with  the  fragment  lef t.^ 
An  attempt  to  murder,  by  sending  to  the  prosecutor  a 
parcel,  consisting  of  a  tin  case  containing  several  ]^ounds  of 
gunpowder,  so  packed  as  to  explode  by  the  ignition  of  deton- 
ating powder,  enclosed  between  two  pieces  of  paper,  connected 
with  a  match  fastened  to  the  lid  and  bottom  of  the  box,  was 
brought  home  to  the  prisoner  by  the  circumstance  that  under- 
neath the  outer  covering  of  brown  paper  was  found  a  portion 
of  the  "  Leeds  Intelligencer "  of  the  5th  of  July,  1832,  the 
remaining  portion  of  which  identical  paper  was  found  in  his 
house.^  In  other  cases  identification  has  been  established  by 
the  correspondence  of  the  wadding  of  a  pistol,  which  stuck  in 
a  wound,  and  Avas  part  of  a  ballad,  which  corresponded  with 
another  part  found  in  the  prisoner's  possession,*  and  by  the 
like  correspondence  of  the  wadding  of  firearms  with  part  of  a 
newspaper  of  which  the  remainder  was  found  in  the  possession 
of  the  prisoner.^  A  murder  had  been  committed  by  shooting 
deceased  with  a  pistol,  and  the  prisoner  was  connected  with 
the  transaction  by  proof  that  the  wadding  of  the  pistol  was 
part  of  a  letter  belonging  to  the  prisoner,  the  remainder  of 
which  was  found  upon  his  person.^  Where  the  defendant  was 
charged  with  the  murder  of  the  deceased  by  shooting,  one 
barrel  of  a  gun  found  in  his  possession  at  the  time  of  his  arrest 
was  loaded,  and  the  other  barrel  empty,  and  paper  and  rags 
used  as  wadding  in  the  loaded  barrel  corresponded  with  paper 
and  rags  blackened  with  powder  found  near  the  scene  of  the 
crimeJ  One  accused  of  a  murder  had,  a  few  days  before  the 
commission  of  the  crime,  purchased  shot  at  a  store  in  the 
neighborhood  corresponding  in  size  to  those  found  in  the  body 
of  the  deceased,  and  the  shot  was  wrapped  in  brown  paper  of 
the  same  sort  as  the  wadding  found  near  the  dead  body.^ 

1  Reg.  V.  Crump,  Stafiford  Summ.  Ass.,  1851,  coram  Mr.  Justice  Erle. 

2  Stark,  on  Ev.  (10th  Am.  Ed.)  844. 

8  Rex  V.  Mountford,  Stafford  Sum.  Ass.,  1835,  1  Moody's  C.  C.  441. 

*  Ex  relatione  Lord  Eldon,  in  3  Hans.  Pari.  Deb.  1740,  3d  ser. 

^  Reg  V.  Courtnage,  and  others,  infra. 

«  See  Stark,  on  Ev.  (10th  Am.  Ed.)  844.  ^  Hodge  v.  State,  98  Ala.  10. 

8  Howard  v.  State,  8  Tex.  Crim.  App.  53. 


IDENTIFICATION  OF  PERSON.  189 

On  the  evening  of  a  homicide  signs  were  discovered  on  the 
hearth  in  the  prisoner's  house  of  bullets  having  been  recently 
moulded ;  his  gun  had  the  appearance  of  having  been  recent- 
ly fired ;  a  bullet  was  found  in  the  tree  near  where  the 
deceased  fell,  and  another  was  found  in  his  body.  It  was 
permitted  to  show  that  these  bullets  fitted  a  mould  found  on 
the  person  of  the  prisoner  at  the  time  of  his  arrest.^  In  an- 
other case  the  ball  which  had  inflicted  the  fatal  wound  was  of 
unusual  size,  and  corresponded  in  weight  with  balls  made  for 
a  gun  traced  to  the  defendant's  possession.'^  A  defendant,  on 
trial  for  murder,  was  known  to  have  been  in  the  vicinity  about 
the  time  of  the  commission  of  the  crime,  and  a  merchant  was 
allowed  to  testify  that  cartridge  shells  found  near  the  scene  of 
the  crime  bore  his  private  mark,  and  that  cartridges  of  the  same 
calibre  had  been  purchased  by  the  defendant  a  few  days  before. 
"Where  the  defendant  was  shot  from  ambush,  and  cartridge  hulls 
were  picked  up  from  the  scene  of  the  crime,  and  it  was  shown  that 
they  were  of  the  same  calibre  as  those  shot  by  the  defendant's 
gun,  the  defendant  introduced  his  gun  in  evidence,  and  car- 
tridge hulls  fired  from  it  during  the  time  of  the  trial,  to  show 
that  the  hulls  Avere  struck  by  the  plunger  in  his  gun  differently 
from  the  hulls  which  the  prosecutor  had  put  in  evidence.  On 
examination  of  the  gun,  however,  it  was  found  that  the  gun 
and  the  plunger  had  been  recently  tamj^ered  with,  and  fixed 
so  as  to  strike  the  cartridges  differently  from  those  which  had 
been  used  by  the  murderers.  The  discovery  of  this  fact  neces- 
sarily prejudiced  the  case  of  the  defendant  in  the  minds  of  the 
jury,  and  a  conviction  followed.^ 

A  Spaniard  was  convicted  of  having  occasioned  a  grievous 
injury  to  an  officer  of  the  post-office,  by  means  of  several 
packets  containing  fulminating  powder,  put  by  him  into  the 
post-office,  one  of  which  exploded  in  the  act  of  stamping.  The 
letters,  which  were  in  Spanish,  and  one  of  them  subscribed 
with  the  prisoner's  name,  were  addressed  to  persons  at  Havana 
and  Matanzas,  who  appeared  to  be  the  objects  of  the  writer's 
malignant  intentions.  There  was  no  proof  that  the  letters 
were  in  the  prisoner's  handwriting,  but  he  was  proved  to  have 
landed  at  Liverpool  on  the  20th  of  September,  and  to  have  put 
several  letters  into  the  post-office  on  the  evening  of  the  22d, 

1  State  V.  Outerbridge,  82  N.  C.  617.  2  Dean  v.  Com.,  33  Grat.  913. 

8  Taylor  v.  Com.,  90  Va.  109. 


;l^90  IDENTIFICATION  OF  PERSON. 

the  explosion  having  occurred  on  the  24th ;  and  there  was 
found  upon  his  person  a  seal  which  corresponded  with  the 
impression  upon  the  letters,  which  circumstance  (though  there 
were  other  strong  facts)  was  considered  as  conclusive  of  his 
guilt,  and  he  was  accordingly  convicted  and  sentenced  to  two 
years'  imprisonment.^  On  a  trial  for  the  forgery  of  a  document, 
the  impression  of  a  seal  attached  to  it  corresponded  with 
another  impression  upon  a  packet  of  papers  produced  in 
evidence  by  the  prisoner,  and  both  impressions  were  taken 
from  a  seal  in  the  possession  of  a  member  of  his  family .^ 

On  a  trial  for  burning  the  prosecutor's  house,  it  was  shown 
that  on  the  morning  after  the  lire  a  place  was  found  in  the 
woods  in  front  of  the  house  where  a  horse  had  been  fastened, 
and  the  horse's  tracks  led  in  the  direction  of  the  house  where 
the  prisoner  was  staying.  And  two  postal  cards  addressed  to 
the  defendant  were  found  on  the  ground  near  the  place  where 
the  horse  had  stood.  This  latter  circumstance  was  admissible, 
but  was  worth  nothing  unless  it  was  shown  that  the  cards  had 
previously  been  in  the  possession  of  the  defendant.^ 

On  a  trial  for  arson  the  fact  that  matches  found  near  the 
burned  building  are  of  the  same  kind  as  those  used  in  the 
defendant's  house,  is  a  circumstance  of  very  little,  if  any, 
weight  against  the  defendant,  when  the  same  kind  is  for  sale 
in  every  store  in  the  neighborhood  and  in  use  in  many  of  the 
families.*- 

The  offender  is  sometimes  identified  by  means  of  wounds  or 
marks  inflicted  upon  his  person.  In  a  case  of  robbery  it 
appeared  that  the  prosecutor,  when  attacked,  had,  in  his  own 
defence,  struck  the  robber  with  a  key  upon  the  face,  and  the 
prisoner  bore  an  impression  upon  his  face  which  corresponded 
with  the  wards  of  the  key.^ 

And  it  has  not  infrequently  happened  that  a  question  of 
doubt  as  to  the  identity  of  the  defendant  has  been  settled  by 
the  discovery  on  his  person  of  permanent  marks  which  were 
known  to  be  on  the  person  of  the  guilty  party.  For  instance, 
a  prisoner  was  compelled  to  exhibit  his  arm  to  the  jury  to 
show   certain   tattoo-marks   which  a  witness   had   previously 

1  Rex  V.  Palayo,  Liverpool  Mids.  Quarter  Sess.,  1836. 

2  Rex  V.  Humphreys,  infra.  ^  King  v.  State,  15  Lea,  51. 

*  People  V.  Kennedy,  32  N,  Y.  141. 

*  See  Stark  on  Ev.  (10th  Am.  Ed.)  844. 


IDENTIFICATION  OF  PERSON.  191 

testified  were  there.^  In  an  early  case  in  this  country  it  was 
held  that  the  prisoner  could  not  be  compelled  to  exhibit  him- 
self to  the  jury  to  enable  them  to  determine  his  status  as  a 
free  negro.^  One  ground  of  the  decision  was  that  a  witness 
could  not  be  compelled  to  furnish  evidence  against  himself. 
But  in  the  subsequent  cases  the  courts  have  evinced  a  reluc- 
tance to  follow  the  reasoning  of  the  court  in  that  case,  and  have 
carefully  distinguished  the  facts  in  the  respective  cases.  The 
decision  was  no  doubt  correct  under  the  peculiar  facts  of  that 
case.  It  has  been  said  that  too  much  meaning  is  attached  to 
the  words  "  compelled  to  make  evidence  against  himself."  In 
a  case  of  homicide  the  defendant  makes  evidence  against  him- 
self by  being  compelled  to  surrender  the  weapon  with  which 
the  offence  was  committed.  A  burglar  is  forced  to  give  evi- 
dence against  himself  when  he  is  compelled  to  surrender  false 
keys  and  other  burglarious  instruments  found  in  his  possession. 
A  counterfeiter  is  compelled  to  give  evidence  against  himself 
when  the  dies  he  has  manufactured  and  used  are  discovered 
and  brought  into  court  for  inspection.^ 

All  instruments  by  which  an  offence  is  alleged  to  have  been 
committed,  all  clothing  of  the  parties  concerned,  and  all  ma- 
terials connected  with  the  crime,  from  which  an  inference  of 
guilt  or  innocence  may  be  drawn,  may  be  produced  at  the  trial 
and  inspected  by  the  jury.'*  On  a  trial  for  murder  where  the 
mortal  wound  was  shown  to  have  been  inflicted  with  a  hatchet, 
identified  by  the  evidence  as  found  in  the  cabin  where  the 
body  of  the  deceased  was  discovered,  the  hatchet  was  held  to 
have  been  properly  handed  to  the  jury  to  be  examined  by 
them.^  A  medical  witness  having  testified  that  a  wound 
which  caused  the  death  of  the  murdered  man  might  have 
been  inflicted  with  a  blunt  instrument,  a  picket  was  produced, 
which  had  been  found  upon  the  premises  of  the  defendant,  and 
which  had  on  it  blood  and  hair.  It  was  shown  that  the  hair 
was  of  the  same  color  as  the  hair  of  the  deceased.^  Where  the 
evidence  established  that  after  a  homicide  the  person  of  the 

1  State  V.  Ah  Chuey,  14  Nev.  79.  2  state  v.  Jacobs,  5  Jones,  259. 

'  See  opinion  of  the  court  in  State  v.  Ah  Chuey,  supra. 

*  See  State  v.  Craemer  (Wash.),  40  Pac.  944;  State  v.  Tippett  (la.),  63  N.  W. 
445;  State  v.  Ferris,  128  Mo.  447. 

<>  McDonel  v.  State,  18  Cent.  L.  J.  374. 

6  Terr.  v.  Egan,  8  Dak.  119.  See  also  Taylor  v.  Com.,  42  Leg.  Int.  193  ;  6 
Cr.  L.  Mag.  625. 


192  IDENTIFICATION  OF  PERSON. 

deceased  was  stripped  of  its  clothing,  a  rope  or  similar  appli- 
ance Avas  fixed  about  the  neck,  and  the  body  dragged  for 
several  miles  to  a  thicket  where  it  was  concealed,  it  was  per- 
mitted to  be  shown  that  a  rope  was  found  in  the  house  of  the 
defendant  which,  from  the  marks  and  indications  upon  it,  had 
evidently  been  used  for  some  such  purpose ;  and  that  a  bundle 
of  clothing  was  found  concealed  some  distance  from  the  body, 
though  there  was  no  positive  testimony  that  the  clothing  had 
belonged  to  the  deceased.^ 

In  one  case,  a  trial  for  murder,  an  empty  Winchester  rifle- 
shell  was  found  near  the  scene  of  the  crime,  stamped  "  W.  R.  A. 
Co. — W.  C.  F. — iO-65."  It  appeared  that  the  defendant  owned 
a  rifle  carrying  shells  of  this  description  ;  and  this,  in  connec- 
tion with  threats  and  other  circumstances,  was  held  suiBcient 
to  justify  conviction.^  And  in  a  trial  for  the  murder  of  one 
who  had  evidently  died  from  wounds  in  the  head  inflicted  by 
a  blunt  instrument,  a  broken  gun  found  lying  near  the  body  of 
the  deceased  was  admitted  in  evidence.'^ 

On  a  trial  for  robbery,  it  having  been  shown  that  one  of  the 
robbers  had  struck  the  president  of  the  bank,  which  had  been 
robbed,  a  severe  blow  with  a  pistol,  it  was  allowed  to  be  proved, 
as  tending  to  establish  the  identity  of  the  defendant,  that  when 
the  defendant  was  arrested  he  was  armed  with  a  pistol,  the 
ramrod  of  which  was  bent  so  that  it  touched  the  barrel.'*  And 
where  one  was  charged  with  assault  with  intent  to  murder,  by 
shooting,  a  witness  was  allowed  to  testify  that  he  had  inserted 
his  finger  into  the  muzzle  of  the  defendant's  gun,  and  that 
when  he  withdrew  his  finger  it  was  wet  and  black,  from  which, 
in  his  opinion,  the  gun  must  have  been  recently  discharged.^ 
In  a  case  where  the  accused  was  convicted  of  the  murder  of 
his  wife,  it  was  shown  that  the  throat  of  the  deceased  had  been 
cut  from  ear  to  ear,  and  that  a  knife  belonging  to  the  prisoner, 
stained  with  blood  not  yet  dry,  was  found  on  a  shelf  in  the 
pantry.^  Immediately  after  a  homicide  the  accused  was  found 
with  his  hands  covered  with  blood,  and  a  knife  in  his  pocket 
was  smeared  with  it.'^ 

1  Hubby  V.  State,  8  Tex.  Crim.  App.  597. 

2  People  V.  Gibson  106  Cal.  458.  »  Ezell  v.  State  (Ala.),  15  So.  818. 
*  Reardon  v.  State,  4  Tex.  Crim.  App.  602. 

^  Meyers  v.  State,  14  Tex.  Crim.  App.  35. 

6  Greenfield  v.  People,  85  N.  Y.  75. 

'  Barbour  v.  Com.,  9  Va.  L.  J.  309  ;  6  Crim.  L.  Mag.  634. 


IDENTIFICATION  OF  PERSON.  193 

That  articles  of  apparel  covered  with  blood  were  found  a 
short  distance  from  the  scene  of  the  murder  and  a  considerable 
time  after  the  murder,  may  not  be  shown  when  there  is 
nothing  to  connect  the  defendant  with  them.^ 

In  this  connection  it  maj""  be  mentioned  that  the  existence 
of  blood-stains  on  the  person  or  clothes  of  one  accused  of  a 
crime  involving  the  shedding  of  blood,  may  always  be  shown. ^ 

"  Stains  of  blood  found  ujK)n  the  person  or  clothing  of  the 
party  accused  have  always  been  recognized  among  the  ordi- 
nary indicia  of  homicide.  The  practice  of  identifying  them  by 
circumstantial  evidence  and  by  the  inspection  of  Avitnesses  and 
jurors  has  the  sanction  of  immemorial  usage  in  all  criminal 
tribunals.  Proof  of  the  character  and  appearance  of  the  stains 
by  those  who  saw  them  has  always  been  regarded  by  the  court 
as  primary  and  legitimate  evidence.  *  *  *  The  degree  of  force 
to  which  it  is  entitled  may  depend  upon  a  variety  of  circum- 
stances to  be  considered  and  weighed  by  the  jury  in  each 
particular  case ;  but  its  competency  is  too  well  settled  to  be 
questioned  in  a  court  of  justice.''  ^ 

Witnesses  not  medical  men  may  give  their  opinion  as  to 
whether  certain  spots  were  blood-spots.*  The  testimony  of 
the  chemist  who  has  analyzed  blood,  and  that  of  the  observer 
Avho  has  merely  recognized  it,  belong  to  the  same  legal  grade 
of  evidence ;  and  though  the  one  may  be  entitled  to  much 
greater  weight  than  the  other,  with  the  jury,  the  exclusion  of 
either  would  be  illegal.^  It  may  be  shown  that  immediately 
after  a  homicide  the  hands  of  the  defendant  are  covered  with 
blood,  without  an  analysis  to  establish  the  fact  that  the  sub- 
stance was  blood.^ 

A  charge  was  affirmed  to  be  correct  in  which  the  trial  court 
had  said  to  the  jury  :  "  "We  cannot  instruct  you  that  because 
no  analysis  had  been  made  of  the  substance  which  the  wit- 
nesses supposed  to  be  blood,  no  chemical  test,  no  microscopic 
examination,  that  you  are  therefore  to  reject  the  evidence  as  in- 
sufficient to  show  that  it  Avas  blood.  We  feel  it  to  be  our  duty 
to  refer  the  question  to  you,  and  leave  it  for  you  to  say  Avhether 

1  State  V.  Thomas,  12  S.  W.  663.  2  Beavers  v.  State,  58  Ind.  530. 

8  Porter,  J.,  in  People  v.  Gonzalez,  35  N.  Y.  49. 
«  Greenfield  v.  People,  85  N.  Y.  75  ;  Thomas  v.  State,  67  Ga.  460. 
^  Remarks  of  Porter,  J.,  in  People  v.  Gonzalez,  35  N.  Y.  49. 
«  Barbour  v.  Com.,  9  Crim.  L.  Mag.  624  ;  9  Va.  L.  J.  309. 
13 


194  IDENTIFICATION  OF  PERSON. 

the  commonAvealth  has  satisfied  you  beyond  a  reasonable  doubt 
that  the  spots  seen  l)y  the  Avitnesses  were  blood."  ^ 

A  man  was  recently  convicted  of  murder  entirely  on  the  evi- 
dence of  circumstances,  one  of  the  most  prominent  of  which  was 
the  existence  of  spots  on  the  accused's  trousers,  which  were 
claimed  to  have  been  caused  by  the  spattering  of  blood  and 
brains  from  the  wounds  inflicted  on  the  head  of  the  deceased. 
One  spot  showed  only  on  the  outside  of  the  cloth,  but  several 
spots  were  quite  noticeable  on  the  inside  as  well.  The 
theory  of  the  prosecution  was  that  the  defendant  had  failed  to 
notice  the  first  spot,  but  that  he  had  attempted  to  wash  off  the 
others,  and  that  the  action  of  the  water  had  forced  the  stain 
through  the  fabric* 

The  impressions  of  shoes,  or  of  shoe-nails,  or  of  other  articles 
of  apparel,  or  of  patches,  abrasions,  or  other  peculiarities 
therein,  discovered  in  the  soil  or  clay,  or  snow,  at  or  near  the 
scene  of  crime,  recently  after  its  commission,  frequently  lead 
to  the  identification  and  conviction  of  the  guilty  parties.^  The 
presumption  founded  on  these  circumstances  has  been  appealed 
to  by  mankind  in  all  ages,  and  in  inquiries  of  every  kind,  and 
is  so  obviously  the  dictate  of  reason,  if  not  of  instinct,  that  it 
would  be  superfluous  to  dwell  upon  its  importance. 

The  effect  or  sufficiency  of  the  evidence  in  reference  to  cor- 
respondence of  tracks  discovered  at  or  near  the  scene  of  a 
crime  with  those  of  the  accused  does  not  seem  to  be  susceptible 
of  being  definitely  stated.  Mr.  Wharton  says  that  "  the  char- 
acter of  footprints  leading  to  the  scene  of  murder,  and  their 
correspondence  with  the  defendant's  feet,  may  be  put  in  evi- 
dence in  cases  where  the  defendant's  agency  is  disputed.  Such 
evidence  is  not  by  itself  of  any  independent  strength,  but  is 
admissible  with  other  proof  as  tending  to  make  out  a  case."  * 
Thus  where  the  wife  of  the  murdered  man  testified  that  the  de- 
fendant did  the  killing,  and  her  testimony  was  corroborated  by 
tracks  sho\vn  to  have  been  made  by  the  defendant  and  by  spots 
of  blood  found  on  his  clothing,  this  was  held  sufficient  to  con- 

1  Gaines  v.  Com.,  14  Wright,  319. 

2  People  V.  Hand,  Mich.  Circ.  Ct.  (Washtenaw  Co.),  January,  1894. 

2  Menochius,  ut  supi-a,  lib.  v.  praes.  31  ;  Mascardus,  ^lt  supra,  Concl. 
DCCCXX.  pi.  11 ;  Traite  de  la  Preuve,  par  Mittermaier,  lit  supra,  c.  57.  And 
see  Young  v.  State,  68  Ala.  569  ;  Hodge  v.  State,  13  So.  164  ;  98  Ala.  10. 

*  Whart.  Cr,  Ev.  §  795. 


IDENTIFICATION  OF  PERSON.  195 

vict,  notwithstanding  the  facts  testified  to  by  the  defendant's 
witnesses  tended  to  prove  an  alibi} 

On  a  trial  for  highway  robbery,  the  boots  of  the  prisoners 
were  found  to  fit  impressions  in  the  soil  at  the  place  where  the 
robbery  had  been  committed.  But  it  was  held  unsafe  to  con- 
vict on  such  evidence  alone.^  And  on  a  trial  for  arson  there 
were  tracks  leading  to  and  from  the  vicinity  of  the  barn  burnt 
corresponding  in  size  and  dimensions  with  defendant's  boots. 
But  these,  even  if  made  by  defendant,  might  have  been  made 
by  him  in  going  to  and  from  one  of  his  fields.  The  evidence 
was  held  insuflicient  to  convict,  especially  in  view  of  the 
friendly  relations  existing  between  the  owner  of  the  barn  and 
the  defendant,  and  the  entire  absence  of  evidence  showing 
motive.^ 

"Where  the  only  evidence  relied  upon  by  the  State  to  convict 
the  accused  was  the  correspondence  of  tracks  discovered  at  or 
near  the  house  where  the  offence  was  alleged  to  have  been 
committed,  and  those  made  by  him,  the  track  in  question  was 
peculiar  in  this,  that  in  consequence  of  a  bent  leg  of  the  de- 
fendant, in  walking,  the  heel  of  his  right  foot  scarcely  touched 
the  ground.  The  opinion  shows  that  there  was  conflict  in  the 
evidence  for  the  State  in  reference  to  the  tracks,  and  also  that 
there  was  nothing  to  indicate  that  the  accused  made  the  assault 
with  the  intent  to  rob  ;  but  the  view  was  expressed  that  the 
evidence  of  tracks  alone  was  not  sufficient  to  sustain  a  convic- 
tion.* On  trial  of  an  indictment  for  arson,  the  witnesses  tes- 
tified that  about  200  yards  from  the  place  where  the  house 
stood,  they  had  discovered  along  a  turn  row  in  the  ploughed 
ground,  the  track  of  a  man  wearing  a  Ko.  8  shoe,  that  "  turned 
the  toe  on  his  left  foot  in  a  little,  and  dug  up  the  ground  with 
the  toe  of  his  right  foot  as  he  walked."  They  followed  this 
track  "  a  piece.  Then  it  turned  out,  going  around  over  ploughed 
ground  to  a  magnolia  tree  standing  about  thirty  yards  from 
the  corner  of  the  burnt  house."  No  tracks  could  be  seen 
under  or  immediately  around  the  tree,  on  account  of  leaves 
and  trash.  They  saw  some  "  barefoot  or  stocking-foot "  tracks 
leading  away  from  the  tree  towards  the  site  of  the  burnt 
house,  and  leading  up  to  where  the  corner  of  the  building  had 

1  Williams  v.  State  (Tex.  Crim.  App.),  25  S.  W.  629. 

2  Reg.  V.  Britton,  1  F.  &  F.  354.  a  state  v.  Johnson,  19  la.  230. 
8  Green  v.  State,  17  Fla.  669. 


19G  IDENTIFICATION  OF  PERSON. 

been.  They  followed  these  tracks  away  from  the  site  of  the 
house  over  cultivated  land  for  about  300  yards,  to  a  place 
where  an  old  fence  had  been  on  lire  that  morning,  and  there 
lost  them.  Here  many  people  had  been  fighting  fire  that 
morning,  and  there  were  many  shoe-tracks  and  barefoot  tracks 
around  where  the  fence  was  burned.  The  witnesses  then  went 
across  a  field  and  through  a  strip  of  woods.  On  the  other  side 
of  the  woods,  about  half  a  mile  from  where  they  left  the  bare- 
foot track,  they  came  across  a  man's  shoe-track.  They  recog- 
nized it  as  the  same  track  as  they  had  seen  in  the  ploughed 
ground  from  the  peculiarities  before  mentioned.  They  fol- 
lowed this  track  till  it  struck  a  road,  and  then  followed  it 
down  the  road  to  the  house  of  defendant,  where  they  found 
defendant  in  his  garden.  As  they  were  all  leaving  the  garden, 
one  of  the  witnesses  observed  the  track  made  by  the  defendant, 
and  recognized  it  as  the  same  track  he  had  seen  near  the  burnt 
house  and  in  the  field.  Now  here  there  was  no  measurement 
of  the  tracks,  or  actual  comparison  by  placing  the  shoes  of  the 
accused  upon  the  impressions  near  the  house  or  in  the  field. 
The  witnesses  arrived  at  the  conclusion  that  the  tracks  were 
the  same  by  observing  the  two  tracks  some  distance  apart. 
And  it  was  held  that  the  failure  to  measure  the  tracks,  or  to 
test  them  by  actual  comparison,  together  with  the  lack  of 
other  unusual  characteristics  than  those  mentioned,  deprived 
them,  standing  alone,  of  the  probative  force  given  to  tracks  of 
marked  peculiarities  distinguisliing  them  from  others,  Avhen 
the  correspondence  has  been  verified  by  the  test  of  actual 
comparison.! 

And  very  little  weight  is  to  be  attached  to  evidence  of  foot- 
prints although  they  correspond  in  dimensions  with  the  shoes 
worn  by  the  person  charged,  unless  it  appears  that  there  is 
about  them  some  peculiarity  which  makes  them  more  easily 
recognizable,  and  which  renders  less  probable  the  supposition 
that  they  were  made  by  some  person  other  than  the  prisoner .^ 
A  judgment  of  conviction  for  arson  founded  on  similarity  of 
tracks  made  by  the  defendant  with  those  found  near  tlie 
burned  building  was  reversed  because  there  was  no  peculiarity 
about  the  track.^ 

'  Whetston  v.  State,  31  Fla.  240, 

2  People  V.  Newton,  3  N.  Y.  Grim.  Rep.  406. 

8  Shannon  v.  State,  57  Ga.  483.    See  also  McDaniel  v.  State,  53  Ga.  253. 


! 


IDENTIFICATION  OF  PERSON.  197 

To  identify  the  defendant  as  one  who  committed  the  theft 
of  a  horse,  it  having  been  shown  that  the  one  who  led  the 
horse  from  the  stable  wore  a  number  six  shoe,  it  Avas  competent 
for  a  merchant  to  testify  that  he  had  sold  the  defendant  shoes 
of  that  size.  This  evidence  Avas  said  to  be  of  very  slight  value, 
but  its  Aveight  was  for  the  jury.^  Footprmts  made  by  one 
Avho  had  pursued  the  woman  of  whose  murder  the  defendant 
was  accused  had  been  made  by  a  shoe  slightly  run  down  at 
the  heel ;  and  such  a  shoe  was  found  on  the  defendant.^  In 
another  case  a  circumstance  which  had  much  to  do  with  the 
identification  of  the  prisoner  was  a  deformity  of  the  left  foot, 
the  tracks  made  by  the  robber  at  the  house  robbed  showing  a 
similar  deformity .^  On  a  murder  trial  the  track  found  near 
the  body  of  the  deceased  showed  a  turning-in  of  the  right  foot, 
and  this  corresponded  with  the  peculiarity  of  the  Avalk  of  the 
defendant.* 

In  a  recent  case  it  appeared  that  the  tracks  were  of  different 
sizes,  but  seemed  to  have  been  made  by  the  same  person,  and 
it  was  shown  that  about  the  time  of  the  offence  the  defendant 
wore  "  odd  "  shoes,  that  is,  one  shoe  of  one  size,  and  another 
of  a  different  size.^  In  one  case  the  peculiarity  of  the  tracks 
was  that  they  were  very  large.^  In  another  case,  w^here  the 
tracks  led  from  the  premises  robbed  to  the  defendant's  yard, 
they  had  been  made  by  a  small  foot,  and  it  was  shown  that 
the  defendant  had  such  a  foot.'' 

But,  where  the  tracks  made  showed  a  strip  of  leather  cover- 
ing  about  half  of  the  heel,  and  on  the  left  heel  of  the  prisoner's 
shoe  was  such  a  piece,  this  was  held  insufficient  to  support  a 
conviction,  even  when  taken  in  connection  with  the  fact  that 
the  prisoner  when  asked  to  hold  up  his  left  foot  had  held  up 
his  right  foot.^ 

If  the  State  offers  evidence  to  the  effect  that  tracks  around 
the  scene  of  the  crime  were  easily  distinguished  on  account  of 
some  peculiarity — for  example,  "  tack-prints  " — and  a  convic- 
tion is  had  on  such  evidence,  the  judgment  Avill  be  reversed  if 

1  State  V.  Reed,  89  Mo.  168. 

2  Preston  v.  State,  8  Tex,  Crim.   App.  30.     See  also  McGill  v.   State,   25 
Tex.  App.  499.  »  Cooper  v.  State,  88  Ala.  107. 

*  Schoolcraft  v.  People,  117  111.  271.  6  Whitfield  v.  State,  25  Fla.  289. 

6  Griggs  V.  State,  59  Ga.  738.  '^  state  v.  Grebe,  17  Kan.  458. 

8  Prather  v.  Com.,  10  Crim.  L.  Man.  890. 


198  IDENTIFICATION  OF  PERSON. 

the  court  has  refused  to  allow  the  defendant  to  show  that  he 
has  never  worn  a  shoe  which  could  make  a  track  presenting 
such  a  peculiarity.^ 

To  guard  against  error,  it  is  manifest  that  the  recency  of  the 
discovery  and  comparison  of  the  impressions  relatively  to  the 
time  of  the  occurrence  of  the  corpus  delicti,  and  before  other 
persons  may  have  resorted  to  the  spot,  is  of  the  highest  import- 
ance.^ But  testimony  as  to  the  measure  of  footprints  is  com- 
petent though  the  measurement  may  not  have  been  made  till 
some  time  after  the  commission  of  the  crime.  This  fact  goes 
not  to  the  competency,  but  to  the  weight  of  the  evidence.^ 
Where  a  conviction  rested  upon  tracks  which  were  not  shown 
to  have  been  recent,  and  there  was  no  peculiarity  about  the 
tracks,  and  the  witnesses  testified  as  to  measurements  made 
by  others,  the  judgment  was  reversed.'* 

So,  the  accuracy  of  the  comparison  is  obviously  all-important,^ 
and  therefore,  as  a  further  means  of  guarding  against  mistake, 
it  is  safer  to  require  that  the  shoes  should  be  compared  with 
the  footmarks  before  they  are  put  on  them ;  ^  and  where  the 
comparison  had  not  been  previously  made,  Mr.  Justice  Park 
desired  the  jury  to  reject  the  whole  inquiry  relating  to  the 
identification  by  shoemarks.'  Where  testimony  has  been 
given  concerning  footprints  near  the  scene  of  the  crime,  it  has 
been  allowed  to  be  shown  that  one  of  the  witnesses  had  put  on 
a  boot  taken  from  the  defendant's  foot,  and  applied  it  to  a 
track  which  had  been  found  there  in  a  pile  of  soft  dirt,  which 
it  fitted,  and  that  he  made  other  tracks  with  it  which  the 
witnesses  examined  and  compared,  and  found  them  to  corres- 
pond in  size,  shape,  appearance  and  peculiarity  with  the  former 
track  and  shape  and  size  of  the  boot. 

It  is  not  necessary  that  a  witness  should  be  an  expert  to 
entitle  him  to  testify  as  to  the  identification  of  tracks.^  The 
correspondence  of  the  shoes  of  the  prisoner  with  the  tracks  is 
matter  of  fact  to  which  any  witness  observing  it  may  testif3\^ 

1  Stone  V.  State,  12  Tex.  Grim.  App.  219. 

2  McDaniel  v.  State,  53  Ga.  253.  s  People  v.  McCurdy,  68  Cal.  576. 
*  McDaniel  v.  State,  53  Ga.  253. 

6  Stone  V.  State,  supra ;  Bouldin  v.  State,  infra. 

6  Rex  V.  Heaton,  1  Lew.  C.  C.  116.  ''  Rex  v.  Shaw,  Id. 

8  State  V.  Morris,  84  N.  C.  756. 

9  Young  V.  State,  68  Ala.  569  ;  Murphy  v.  People,  63  N.  Y.  590. 


IDENTIFICATION  OF  PERSON.  199 

A  witness,  it  is  held,  may  testify  as  to  the  peculiaritj''  of  tracks 
made  by  the  defendant,  but  may  not  testify  that  in  his  opinion 
or  judgment  certain  tracks  were  made  by  the  defendant.^ 

He  may  be  allowed  to  go  no  further  than  to  state  the  facts 
of  identification,  and  it  is  for  the  jury  to  find,  from  the  facts 
deposed  to,  whether  they  are  defendant's  tracks  or  not.'*  But 
this  rule  is  not  universal.  A  witness  for  the  State  was  allowed 
to  testify  that  he  measured  tracks  found  at  the  place  of 
the  burglary,  and  that  he  examined  the  shoe  the  defendant 
had  on  immediately  after  the  commission  of  the  offence, 
and  that  upon  placing  the  shoe  in  the  track  he  found  it  to 
fit  exactly.^  In  another  case,  a  State's  witness  was  permitted 
to  testify  that  two  days  after  the  robbery  charged  in  the 
indictment  he  went  to  the  scene  of  the  crime  and  there 
examined  the  footprints  round  and  about  the  spot,  which 
tracks  he  described ;  that  afterwards  he  was  present  attending 
the  examining  trial  of  the  defendant,  and  noticed  the  boots  of 
the  defendant,  and  that,  in  his  opinion,  the  tracks  made  at  the 
place  of  the  robbery  were  made  by,  and  corresponded  with, 
the  boots  of  the  defendant.* 

It  is  not  necessary  that  an  examination  of  tracks  and  com- 
parison with  the  measurements  of  the  boots  of  the  defendant 
be  made  in  his  presence.^ 

It  has  been  held  that  a  defendant  cannot  be  compelled 
against  his  Avill  to  put  his  foot  in  a  shoe-track  that  it  may  be 
used  as  evidence  against  him  on  the  trial,  when  the  person 
employing  the  force  has  no  lawful  warrant  or  authority  for  so 
doing.^  But  a  prisoner  indicted  for  stealing  corn  from  a  field 
was  compelled  by  the  officer  who  arrested  him  to  put  his  foot 
in  the  tracks  found  in  the  field,  and  the  officer  was  alloAved  to 
testify  to  the  resemblance.''  In  a  recent  case,  the  accused  and 
those  of  his  kindred,  who,  it  was  said,  made  similar  tracks, 

1  Livingston  v.  State  (Ala.),  16  So.  801 ;  Riley  u.  State,  88  Ala.  193  ;  Clough 
V.  State,  7  Neb.  330. 

2  Busby  V.  State,  77  Ala.  66  ;  Riley  v.  State,  88  Ala.  193  ;  Hodge  v.  State, 
98  Ala.  10. 

3  McLain  v.  State,  30  Tex.  App.  483. 

*  Clark  V.  State,  28  Tex.  Crim.  App.  189.  See  to  the  same  effect  Thomp- 
son V.  State,  19  Tex.  Crim.  App.  594  ;  Crumes  v.  State,  28  Tex.  Crim.  App. 
516. 

»  State  V.  Morris,  84  N.  C.  756.  «  Day  v.  State,  63  Ga.  667. 

T  State  V.  Graham,  74  N.  C.  646. 


200  IDENTIFICATION  OF  PERSON. 

voluntarily  put  their  feet  in  sand  before  the  jury,  and  the  jury 
were  enabled  to  see  the  peculiarity  in  the  tracks  which  had 
been  testified  to  by  several  witnesses  as  existing  in  the  tracks 
traced  from  the  house  where  the  burglary  charged  was  com- 
mitted.^ 

But  it  must  not  be  overlooked  that,  even  where  the  identity 
of  footmarks  has  been  established  beyond  all  doubt,  they  may 
have  been  fabricated  with  the  intention  of  diverting  suspicion 
from  the  real  offender,  and  fixing  it  upon  an  innocent  party  ;  ^ 
and  that  in  other  respects  this  kind  of  evidence  may  lead  to 
erroneous  interpretation  and  inference.^ 

It  is  proper  for  the  prosecution  to  show  that  horse-tracks 
trailed  from  the  scene  of  the  crime  correspond  with  those 
made  by  a  horse  found  in  the  defendant's  possession.*  It  was 
shown  in  one  case  that  shoes  taken  from  the  prisoner's  horse 
fitted  the  tracks  leading  in  the  direction  Avhere  the  body  of  the 
deceased  was  found.^ 

In  a  case  which  occurred  some  years  ago,  a  prisoner  charged 
with  arson  had  turned  his  horse's  shoes  round  after  arriving  at 
the  house,  so  as  to  create  the  appearance  of  two  persons 
having  proceeded  to  and  from  it ;  but  the  artifice  was  the 
means  of  detection,  since  the  removal  of  the  shoes  was  indi- 
cated by  the  recent  marks  of  nails  on  the  horse's  foot,  and 
afforded  one  of  the  most  emphatic  of  the  indications  by  Avhich 
the  prisoner's  guilt  was  established.^ 

But  evidence  that  horse-tracks  leading  from  the  scene  of  the 
crime  correspond  in  size  with  those  made  by  the  defendant's 
horse  is  not  sufficient  evidence  standing  alone  to  convict  the 
defendant.  On  a  trial  for  arson  the  defendant  was  allowed  to 
show  that  his  barn  stood  open  continuall3^  It  thus  was  pos- 
sible that  the  horse  might  have  been  taken  from  the  barn  and 
ridden  by  a  stranger  without  the  knowledge  of  the  defendant." 

Where,  on  a  trial  for  murder,  the  principal  circumstance 
relied  on  was  a  series  of  horse-tracks  leading  in  the  direction 
of  the  defendant's  cabin,  and  the  court  would  not  allow  de- 

^  Gregory  v.  State,  80  Ga.  269. 

^  See  the  case  of  Frangois  Mayenc,  Gabriel,  403. 

*  Rex  V.  Thornton,  Rex  v.  Isaac  Looker,  infra. 

*  Goldsmith  v.  State,  32  Tex.  Grim.  App.  112. 

*  Campbell  v.  State,  23  Ala.  44. 

*  Spooner's  Case,  2  Chandler's  Am.  Crim.  Tr. 
^  State  V.  Manbrick,  65  la.  614. 


IDENTIFICATION  OF  PERSON.  201 

fendant  to  give  in  evidence  a  comparison  of  the  measure  of 
his  horse's  foot  and  that  found  near  the  place  of  killing,  the 
judgment  was  reversed.^ 

The  following  cases  illustrate  the  pertinency  and  weight  of 
such  mechanical  facts,  especially  when  connected  with  other 
concurring  circumstances  leading  to  the  same  result : 

"Where  the  defendant  was  accused  of  the  theft  of  the  body 
of  a  hog  which  he  had  previously  killed,  the  head  of  a  hog 
freshly  killed  was  found  and  tracks  led  from  it  to  the  accused's 
house ;  also  a  box  containing  fresh  pork  was  found  concealed, 
and  the  box  was  identified  as  belonging  to  the  prisoner.^  On 
a  trial  for  larceny,  in  addition  to  the  evidence  of  tracks,  the 
defendant  had  been  found  in  possession  of  several  coins  of  the 
same  kind  as  those  stolen.^  Two  were  convicted  of  burglary 
on  evidence  which  showed  that,  early  in  the  morning  after  the 
burglary,  footsteps  were  traced  from  the  barber-shop  burglar- 
ized to  a  vacant  building  near  by  in  which  the  defendants  were 
found  asleep  ;  that  goods  taken  from  the  shop  were  found  con- 
cealed under  sawdust  within  a  few  feet  of  where  defendants 
were  sleeping,  that  other  goods  taken  from  a  store  adjoining 
the  barber-shop,  which  store  had  also  been  burglarized  on  the 
same  occasion,  were  found  concealed  near  the  entrance  of  the 
vacant  building  beneath  some  old  barrels ;  that  some  chisels 
were  found  concealed  in  the  building,  one  of  which  fitted  the 
marks  on  the  door  of  the  barber-shop  which  had  been  forced 
open  by  the  use  of  some  hard  instrument ;  that  within  one  or 
two  days  before  the  commission  of  the  burglary  one  of  the  de- 
fendants inquired  of  a  bootblack  connected  Avith  the  barber- 
shop how  much  money  he  was  making  and  where  he  kept  it, 
and  that,  the  day  after  the  burglary,  one  of  the  defendants 
was  heard  telling  a  younger  brother  to  go  to  a  spot  where  part 
of  the  goods  were  afterwards  found,  and  see  if  they  were  still 
there.* 

A  farm  laborer  was  tried  for  the  murder  of  a  young  woman, 
a  domestic  servant,  living  in  the  same  service.  A  little  before 
seven  in  the  evening  she  went  on  an  errand  to  take  some  barm 
to  a  neighboring  house,  about  200  yards  distant,  but  it  not 

1  Bouldin  v.  State,  8  Tex.  Crim.  App.  333. 

2  Thompson  v.  State,  30  Tex.  356. 

8  People  V.  McCallam,  3  N.  Y.  Cr.  Rep.  189. 
*  People  V.  Arthur,  93  Cal.  536. 


202  IDENTIFICATION  OF  PERSON. 

being  wanted,  she  did  not  leave  it,  and  set  out  about  seven 
o'clock  on  her  way  back.  Being  about  to  leave  her  situation 
that  evening,  she  had  requested  the  prisoner  to  carry  her  box 
to  the  gardener's  house,  about  a  quarter  of  a  mile  distant. 
Soon  after  she  set  out  on  her  errand,  the  prisoner  followed 
her,  carrying  her  box,  but  did  not  reach  the  gardener's  cottage 
until  after  eight.  On  the  following  morning  she  was  found, 
lying  on  her  back,  drowned  in  a  shallow  pit  near  a  footpath 
leading  from  her  master's  house  to  the  gardener's  cottage. 
There  were  marks  of  violence  on  her  person,  and  one  of  her 
shoes  and  the  jug  in  which  she  had  carried  the  barm  were 
found  near  the  pit.  Barm  was  also  found  spilt  near  the  spot, 
and  there  were  marks  of  much  trampling ;  and  chaff  and 
grains  of  wheat  Avere  scattered  about,  which  were  material 
facts,  the  prisoner  having  been  engaged  the  day  before  in 
threshing  wheat.  Impressions  were  found  in  the  soil,  which 
Avas  stiff  and  retentive,  of  the  knee  of  a  man  Avho  had  worn 
breeches  made  of  striped  corduroy,  and  patched  with  the  same 
material,  but  the  patch  was  not  set  on  straight,  the  ribs  of  the 
patch  meeting  the  hollows  of  the  garment  into  which  it  had 
been  inserted  ;  Avhich  circumstance  exactly  corresponded  with 
the  prisoner's  dress.  The  prisoner  denied  that  he  had  seen 
the  deceased  after  she  left  the  house  on  her  errand,  and  stated 
that  he  had  been,  in  the  interval  before  his  arrival  at  the 
gardener's  house,  in  company  with  an  acquaintance  whom  he 
had  met  Avith  on  the  road ;  but  it  Avas  proved  that  the  person 
referred  to  at  the  time  in  question  was  at  work  thirty  miles 
off.     He  was  convicted  and  executed.^ 

A  man  was  tried  at  Stafford  Summer  Assizes,  1844,  for  the 
murder  of  an  elderly  Avoman,  the  housekeeper  of  an  old  gentle- 
man at  TVednesbury,  Avho,  Avith  a  man-servant,  were  the  only 
other  inmates.  Her  master  Avent  from  home  on  a  Saturday 
morning,  about  half-past  nine  o'clock,  as  he  Avas  accustomed  to 
do  on  that  day  of  the  Aveek,  leaving  the  deceased  in  the  house 
alone.  Upon  his  return,  a  quarter  before  two,  he  found  her 
dead  body  in  the  brew-house,  her  throat  having  been  cut,  and 
the  house  robbed.  Tlie  murder  had  probably  been  committed 
about  a  quarter  past  ten  o'clock,  as  the  butcher  called  at  that 
time  and  was  unable  to  obtain  admittance,  and  about  the  same 
time  a  scream  was  heard.  Traces  were  found  of  a  man's  right 
1  Rex  V.  Brindley,  Warwick  Spr.  Ass.,  1816. 


IDENTIFICATION  OF  PERSON.  203 

and  left  footsteps  leading  from  a  stable  in  a  small  plantation 
near  the  front  of  the  house,  from  which  any  person  leaving  the 
house  by  the  front  door  could  be  seen ;  and  similar  footsteps 
were  found  at  the  back  of  the  house,  leading  from  thence  across 
a  ploughed  field  for  a  considerable  distance,  in  a  sequestered 
direction,  until  they  reached  a  canal  bank,  where  they  were 
lost  on  the  hard  ground.  From  the  distance  between  the  steps 
at  the  back  of  the  house  and  in  the  ploughed  field,  the  person 
whose  footsteps  they  were  must  have  been  running ;  the  im- 
pressions were  those  of  right  and  left  boots,  and  were  ver}^ 
distinct,  there  having  been  snow  and  rain,  and  the  ground 
being  very  moist.  The  right  footprints  had  the  mark  of  a  tip 
round  the  heel ;  and  the  left  footprints  had  the  impression  of  a 
patch  fastened  to  the  sole  with  nails  different  in  size  from  those 
on  the  sole  itself  ;  and  altogether  there  were  four  different  sorts 
of  nails  on  the  patch  and  soles,  and  in  some  places  the  nails  were 
missing.  Suspicion  fell  upon  the  prisoner,  who  had  formerly 
lived  as  fellow-servant  with  the  deceased,  and  who  had  been 
seen  by  several  persons  in  the  vicinity  of  the  house  a  little 
before  ten  o'clock.  Upon  his  apprehension  on  the  following 
morning,  his  boots,  trousers,  shirt,  and  other  garments  Avere 
found  to  be  stained  with  blood,  and  the  trousers  had  been 
rubbed  or  scraped,  as  if  to  obliterate  stains.  The  prisoner  wore 
right  and  left  boots,  which  were  carefully  compared  with  the 
footprints  by  making  impressions  of  the  soles  in  the  soil  about 
six  inches  from  the  original  footmarks  ;  which  exactly  corre- 
sponded as  to  the  patch,  the  tip,  and  the  number,  shape,  sizes, 
and  arrangement  of  the  nails.  The  boots  were  then  placed 
lightly  upon  the  original  impressions,  and  here  again  the  cor- 
respondence was  exact.  There  could  therefore  be  no  doubt  that 
the  impressions  of  all  these  footsteps  had  been  made  by  the 
prisoner's  boots.  He  had  been  seen  about  a  quarter  be- 
fore eleven  on  the  morning  of  the  murder,  with  something 
bulky  under  his  coat,  near  the  place  where  the  footsteps  were 
lost  on  the  hard  ground,  and  proceeding  thence  towards  the 
town  of  "Wednesbury.  At  eleven  o'clock  he  called  at  the 
"  Pack  Horse  "  in  that  place,  not  far  from  the  house,  where  he 
took  something  to  drink  and  immediately  left,  and  at  a  little 
after  twelve  he  called  at  another  public-house,  which  was  also 
near  the  scene  of  the  murder,  where  he  stayed  some  time  smok- 
ing and  drinking.     In  the  interval  between  the  times  when  the 


204 


IDENTIFICATION  OF  PERSON. 


prisoner  had  called  at  these  public-houses,  he  was  seen  at  some 
distance  from  them,  near  an  old  whimsey ;  and  he  was  sub- 
sequently seen  returning  in  the  opposite  direction  towards 
Wednesbury.  Five  days  afterwards,  upon  further  search,  the 
same  footprints  were  discovered  on  a  footpath  leading  in  a 
direction  from  the  "  Pack  Horse "  towards  the  whimsey, 
where  two  bricks  appeared  to  have  been  placed  to  stand  upon, 
close  to  which  was  found  an  impression  of  a  right  foot  corre- 
sponding with  the  impressions  which  had  been  before  discovered  ; 
and  in  the  flue  was  concealed  a  handkerchief  in  which  were 
tied  up  a  pair  of  trousers  and  waistcoat,  part  of  the  property 
stolen  from  the  house.  The  prisoner  must  have  availed  himself 
of  the  interval  between  the  times  when  he  was  seen  at  the  two 
public-houses,  to  secrete  the  stolen  garments  in  the  whimsey, 
and  thus  to  divest  himself  of  the  bulky  articles  which  had  been 
observed  under  his  coat  on  his  arrival  at  the  "  Pack  Horse." 
The  jury,  after  deliberating  several  hours,  returned  a  verdict  of 
guilty,  and  he  was  executed  pursuant  to  his  sentence,  having 
previously  made  a  confession  of  his  guilt.^ 

1  Reg.  V.  Beards,  coram  Mr.  Serjeant  Atcherley  ;  and  see  other  cases  of 
this  kind,  Rex  v.  Richardson,  Rex  v.  Smith  and  others,  infra;  Rex  v.  Spig- 
gott  and  others,  4  Cel.  Tr.  446. 


4 


CHAPTER  II. 

IDENTIFICATION  OP  ARTICLES  OF  PROPERTY. 

The  identification  of  articles  of  property,  like  that  of  the 
human  person,  is  capable  of  being  established,  not  only  by 
direct  evidence,  but  by  means  of  numberless  circumstances 
^\  hicli  it  is  not  possible  to  enumerate.  Most  of  the  cases  of  iden- 
tification which  have  been  enumerated  in  the  preceding  chapter 
are  in  fact  cases  of  identification  of  articles  of  property,  ap- 
])lied  inferentially  to  the  establishment  of  personal  identity,  and 
sufficiently  illustrate  the  diificulties  which  attend  investigations 
of  this  land. 

The  following  cases,  as  well  as  others  which  have  been 
already  mentioned,  show  how  liable  even  well-intentioned  wit- 
nesses, who  speak  to  facts  of  this  particular  kind,  are  to  error 
and  misconception. 

At  the  Spring  Assizes,  at  Bury  St.  Edmunds,  1830,  a  respect- 
able farmer,  occupying  twelve  hundred  acres  of  land,  was  tried 
for  burglary  and  stealing  a  variety  of  articles.  Amongst  the 
articles  alleged  to  have  been  stolen  were  a  pair  of  sheets  and  a 
cask,  which  were  found  in  the  possession  of  the  prisoner,  and 
were  positively  sworn  to  by  the  witnesses  for  the  prosecution 
to  be  those  which  had  been  stolen.  The  sheets  were  identified 
by  a  particular  stain,  and  the  cask  by  the  mark  "  P.  C.  S-i," 
enclosed  in  a  circle  at  one  end  of  it.  On  the  other  hand,  a 
number  of  witnesses  swore  to  the  sheets  being  the  prisoner's, 
by  the  same  mark  by  which  they  had  been  identified  by  the 
Avitnesses  on  the  other  side  as  being  the  prosecutor's.  With 
respect  to  the  cask,  it  was  proved  by  numerous  witnesses, 
whose  respectability  left  no  doubt  of  the  truth  of  their  testi- 
mony, that  the  prisoner  was  in  the  habit  of  using  cranberries 
in  his  establishment,  and  that  they  came  in  casks,  of  which  the 
cask  in  question  was  one.  In  addition  to  this,  it  was  proved 
that  the  prisoner  purchased  his  cranberries  from  a  tradesman 

205 


206  IDENTIFICATION  OF  ARTICLES  OF  PROPERTY. 

in  Norwich,  whose  casks  were  all  marked  "  P.  C.  84., "  enclosed 
in  a  circle,  precisely  as  the  prisoner's  were,  the  letters  P.  C. 
being  the  initials  of  his  name,  and  that  the  cask  in  question  was 
one  of  them.  In  summing  up,  the  learned  judge  remarked  that 
this  was  one  of  the  most  extraordinary  cases  ever  tried,  and 
that  it  certainly  appeared  that  the  witnesses  for  the  prosecu- 
tion were  mistaken.     The  prisoner  was  acquitted.^ 

A  man  was  tried  in  Scotland  for  housebreaking  and  theft. 
The  girl  whose  chest  had  been  broken  open,  and  whose  clothes 
had  been  carried  off,  swore  to  the  only  article  found  in  the 
prisoner's  possession,  and  produced,  namely,  a  white  gown,  as 
being  her  property.  She  had  previously  described  the  color, 
quality,  and  fashion  of  the  gown,  and  they  all  seemed  to  cor- 
respond with  the  article  produced.  The  housebreaking  being 
clearly  proved,  and  the  goods,  as  it  was  thought,  clearly  traced, 
the  case  was  about  to  be  closed  by  the  prosecutor,  when  it 
occurred  to  one  of  the  jury  to  cause  the  girl  to  put  on  the 
gown.  To  the  surprise  of  every  one  present,  it  turned  out  that 
the  gown  which  the  girl  had  sworn  to  as  belonging  to  her, 
which  corresponded  with  her  description,  and  which  she  said 
she  had  worn  only  a  short  time  before,  would  not  fit  her  per- 
son. She  then  examined  it  more  minutely,  and  at  length  said 
it  was  not  her  gown,  though  almost  in  every  respect  resembling 
it.  The  prisoner  was,  of  course,  acquitted  ;  and  it  turned  out 
that  the  gown  produced  belonged  to  another  woman,  whose 
house  had  been  broken  into  about  the  same  period,  by  the 
same  person,  but  of  which  no  evidence  had  at  that  time  been 
produced.2 

A  woman  was  convicted  of  larceny  on  proof  that  a  number 
of  small  articles  of  commerce,  alleged  to  have  been  stolen,  were 
found  in  her  possession.  The  complaining  witness  swore 
positively  to  the  identity  of  the  articles,  but  the  defendant 
produced  witnesses  who  testified  that  the  articles  had  been 
purchased  by  the  defendant  a  short  time  before.  The  convic- 
tion was  reversed. 

On  the  trial  of  a  young  woman  for  child-murder,  it  appeared 
that  the  body  of  a  newly-born  female  child  was  found  in  a 
pond  about  a  hundred  yards  from  her  master's  house,  dressed 
in  a  shirt  and  cap,  and  a  female  witness  deposed  that  the  stay 

1  A.  R.,  1820,  50. 

2  Rex  V.  Webster,  Burnett's  C.  L.  of  Scotland,  19  St.  Tr.  494. 


IDENTIFICATION  OF  ARTICLES  OF  PROPERTY.  207 

or  tie  which  was  pinned  to  the  cap,  and  made  of  spotted  linen, 
was  made  of  the  same  stuff  as  a  cap  found  in  the  prisoner's 
box ;  but  a  mercer  declared  that  the  two  pieces  were  not  only 
unlike  in  pattern,  but  different  in  quality. ^ 

A  youth  was  convicted  of  stealing  a  pocket-book  containing 
five  one-pound  notes,  under  very  extraordinary  circumstances. 
The  prosecutrix  left  home  to  go  to  market  in  a  neighboring 
town,  and  having  stooped  down  to  look  at  some  vegetables 
exposed  to  sale,  she  felt  a  hand  resting  upon  her  shoulder, 
which  on  rising  up  she  found  to  be  the  prisoner's.  Having 
afterwards  purchased  some  articles  at  a  grocer's  shop,  on 
searching  for  her  pocket-book  in  order  to  pay  for  them,  she 
found  it  gone.  Her  suspicion  fell  upon  the  prisoner,  who  was 
apprehended,  and  upon  his  person  was  found  a  black  pocket- 
book,  which  she  identified  by  a  particular  mark,  as  that  which 
she  had  lost,  but  it  contained  no  money.  Several  witnesses 
deposed  that  the  prisoner  had  long  possessed  the  identical 
pocket-book,  speaking  also  to  particular  marks  by  which  they 
were  enabled  to  identify  it ;  but  some  discrepancies  in  their 
evidence  having  led  to  the  suspicion  that  the  defence  was  i» 
fabricated  one,  the  jury  returned  a  verdict  of  guilty,  and  the 
prisoner  was  sentenced  to  be  transported.  During  the  con- 
tinuance of  the  assizes,  two  men  who  were  mowing  a  field  of 
oats  through  which  the  path  lay  by  which  the  prosecutrix  had 
gone  to  market,  found  in  the  oats,  close  to  the  path,  a  black 
pocket-book  containing  five  one-pound  notes.  The  men  took 
the  notes  and  pocket-book  to  the  prosecutrix,  who  imme- 
diately recognized  them ;  and  the  committing  magistrate  dis- 
patched a  messenger  with  the  articles  found,  and  her  affidavit 
of  identity,  to  the  judge  at  the  assize  town,  who  directed  the 
prisoner  to  be  placed  at  the  bar,  publicly  stated  the  circum- 
stances so  singularly  brought  to  light,  and  directed  his  imme- 
diate discharge.  The  prosecutrix  must  have  dropped  her  pocket- 
book,  or  dra^vn  it  from  her  pocket  with  her  handkerchief,  and 
had  clearly  been  mistaken  as  to  the  identity  of  the  pocket-book 
produced  upon  the  trial.^ 

It  is  not,  however,  necessary  that  the  identity  of  stolen  prop- 
erty should  be  invariably  established  by  positive  evidence. 
In  a  prosecution  against  a  vessel  for  a  violation  of  law  it  is  not 

1  Rex  V.  Bate,  Warwick  Autumn  Ass.,  1809,  before  Mr.  Justice  Le  Blanc. 

2  Rex  V.  Gould,  coram  Mr.  Barron  Garrow,  Stafford  Summ.  Ass.,  1820. 


208  IDENTIFICATION  OF  ARTICLES  OF  PROPERTY. 

necessary  to  adduce  positive  testimony  of  the  identity  of  the 
vessel :  coincidence  of  circumstances  may  be  proof  sufficient  to 
impress  the  mind  with  a  conviction  ahnost  irresistible.^  In 
many  such  cases  identification  is  impracticable ;  and  yet  the 
circumstances  may  render  it  impossible  to  doubt  the  identity  of 
the  property,  or  to  account  for  the  possession  of  it  by  the  party 
accused  upon  any  reasonable  hypothesis  consistent  with  his 
innocence ;  as  in  the  case  of  laborers  employed  in  docks, 
warehouses,  or  other  such  establishments,  found  in  possession 
of  tea,  sugar,  tobacco,  pepper,  or  other  like  articles,  concealed 
about  the  person,  in  which  cases  the  similarity  or  general 
resemblance  of  the  article  stolen  is  sufficient.^  Identity  of 
stolen  goods  is  sufficiently  proven  by  testimony  that  they  are 
goods  of  the  same  description  as  those  stolen,  and  by  the  positive 
identification  of  other  stolen  goods  found  with  them,  and  the 
fact  that  the  defendant  in  whose  possession  they  were  found 
was  employed  in  the  place  from  which  the  goods  were  stolen, 
at  the  time  they  were  taken.^  Two  men  were  con^ncted  of 
stealing  a  quantity  of  soap  from  a  soap  manufactory  near 
Glasgow,  which  was  broken  into  on  a  Saturday  night  by 
boring  a  hole  in  the  wall,  and  120  lbs.  of  yellow  soap  abstracted. 
On  the  same  night,  at  eleven  o'clock,  the  prisoners  were  met 
by  a  watchman  near  the  centre  of  the  city,  one  of  them  having 
40  lbs,  of  yellow  soap  on  his  back,  and  the  other  with  his  clothes 
greased  all  over  with  the  same  substance.  The  prisoners, 
on  seeing  the  watchman,  attempted  to  escape,  but  were  seized. 
The  owner  declared  that  the  soap  was  exactly  of  the  same  kind, 
size,  and  shape  with  that  abstracted  from  his  manufactory; 
but,  as  it  had  no  private  mark,  he  could  not  identify  it  more 
distinctly.  One  of  the  prisoners  had  formerly  been  a  servant 
about  the  premises,  and  both  of  them  alleged  that  they  got  the 
soap  in  a  public-house,  from  a  man  whom  they  did  not  know.'* 
A  servant  man  was  seen  to  come  from  a  part  of  his  master's 
premises  where  he  had  no  right  to  go,  and  where  a  large  quan- 
tity of  pepper  was  stored  in  bulk,  and  on  being  stopped,  a 
quantity  of  pepper  of  the  same  kind  was  found  on  his  person. 

1  The  Jane  v.  U.  S.,  7  Cranch,  363, 

2  2  East  P.  C.  637  ;  2  Russell  on  Crimes  (9th  Am.  Ed.),  342  ;  Rex  v.  White, 
R.  &  R.  508. 

2  People  V.  Ferguson,  1  City  Hall  Rec,  65. 

*  Rex  V.  McKechnie  &  Tolmie,  Glasgow  Spring  Circ,  1828. 


IDENTIFICATION  OF  ARTICLES  OF  PROPERTY.  209 

It  was  held  by  the  Cruninal  Court  of  Appeal  that  though  the 
pepper  could  not  be  positively  identified,  he  had  been  properly 
convicted  of  larceny.^ 

Where  the  prosecutor  kept  a  large  toy-shop  and  the  prisoner, 
a  little  boy,  came  into  the  shop  dressed  in  a  smock  frock,  and 
after  remaining  there  some  time,  from  suspicion  excited,  he 
was  searched,  and  under  his  frock  were  found  concealed  a  doll, 
six  toy  houses  and  other  such  things,  and  the  prosecutor  swore 
that  he  believed  the  toy  houses  to  be  his  property  because  they 
exactly  resembled  other  toy  houses  of  the  same  sort  which  he 
had  in  the  shop ;  and  he  gave  the  same  evidence  with  regard  to 
all  the  other  articles  except  the  doll,  and  he  swore  that  the 
doll  had  been  his  because  he  found  upon  it  his  private  mark  ; 
but  he  could  not  say  that  he  had  not  sold  it,  and  he  had  not 
missed  and  could  not  miss,  from  the  nature  of  his  stock  which 
the  prisoner  was  charged  with  stealing.  The  prisoner  was 
acquitted,  Erie,  J.,  holding  that  the  corpus  delicti  was  not 
established,  and  that,  for  all  that  appeared,  the  prisoner  might 
have  come  by  the  property  in  an  honest  manner .^  The  distinc- 
tion between  this  case  and  the  preceding  one  is  this,  that  in 
this  case  the  boy  asserted  that  the  doll  was  his  own  and  con- 
ducted himself  like  an  honest  person,  while  in  the  preceding 
case  the  man,  on  being  accosted,  threw  down  some  of  the 
pepper,  and  said,   "  I  hope  you  will  not  be  hard  with  me." 

"Where  the  defendant  was  charged  with  the  theft  of  28  bars 
of  pig-iron,  the  evidence  of  the  agent  having  it  in  charge 
showed  that  a  larceny  of  the  iron  had  probably  been  com- 
mitted ;  that  the  quantity  taken  was  similar  to  that  found  in 
the  prisoner's  possession  ;  that  it  had  the  marks  and  appearance 
of  the  iron  in  the  agent's  custody  ;  and  that,  probably,  no 
other  iron  of  that  description  was,  at  the  time,  on  deposit,  or 
for  sale  in  the  \dcinity.  And  a  conviction  followed.^  A  man 
was  convicted  of  the  theft  of  bacon.  The  prosecuting  witness 
swore  that  the  bacon  which  had  been  stolen  from  her  was 
unsmoked  and  had  yellow  mould  on  it,  and  this  corresponded 
to  the  description  of  the  bacon  found  in  the  defendant's  pos- 
session.* 

1  Rex  V.  Burton,  23  L.  J.  M.  C.  52  ;  6  Cox  C.  C.  293. 
'  Reg.  V.  Dredge,  1  Cox  C.  C.  235. 

8  DiUon  V.  People,  1  Hun,  670.     See  also  State  v.  Fuiioug,  19  Me.  225. 
*  State  V.  Kent,  65  N.  C.  311. 
14 


CHAPTER  III. 

PROOF     OF    HANDWRITING. 


Section  I. 
Proof  hy  Direct  Evidence. 

The  usual  mode  of  proving  hand^vTiting  is  by  the  direct 
testimony  of  some  witness  who  has  either  seen  the  party 
write,  or  acquired  a  knowledge  of  his  handwriting,  from 
having  corresponded  with  him,  and  had  transactions  in  business 
with  him,  on  the  faith  that  .letters  purporting  to  have  been 
written  or  signed  by  him  were  genuine.  In  either  case  the 
witness  is  supposed  to  have  received  into  his  mind  an  exemplar 
of  the  general  character  of  the  handwriting  of  the  party, 
impressed  on  it  as  the  involuntary  and  unconscious  result  of 
constitution,  habit,  or  other  permanent  cause,  and  which  is 
therefore  itself  permanent ;  and  he  is  called  on  to  speak  to  the 
writing  in  question  by  reference  to  the  standard  so  formed  in 
his  mind.^ 

A  witness  cannot  testify  as  to  handwriting  unless  his 
knowledge  is  first  shown.^  Not  every  person  who  has  seen  a 
party  write  is  competent  to  testify  or  give  an  opinion  upon  the 
genuineness  of  a  signature.  In  the  course  of  a  busy  life  we 
may  see  many  persons  write,  in  many  instances  merely  casu- 
ally, the  recollection  of  which  is  entirely  effaced  from  the 
memory,  as  much  so  as  if  he  had  never  seen  the  writing.  In 
order  to  make  a  witness  competent  he  must  be  able  to  say 
that  he  has  some  knowledge  or  acquaintance  with  the  hand- 
writing of  the  person,  or  believes  he  has  such  knowledge  or 

•  1  Per  Coleridge,  J.,  in  Doe  d,  Mudd  v.  Suckermore,  5  A.  &  E.  705,  and 
2  N.  &  P.  16.     And  see  Fee  t'.  Taylor,  83  Ky.  259. 
2  Arthur  v.  Arthur,  38  Kau.  691. 
210 


PROOF  OF  HANDWRITING.  211 

acquaintanceship,  acquired  by  seeing  him  write  many  times,  or 
once,  or  in  some  other  legal  way.  The  extent  of  his  knowledge 
or  familiarity  with  the  handwriting  in  question  enters  into  the 
weight  of  his  testimony,  but  does  not  affect  its  competency.^ 

Any  person  who  has  seen  the  party  Avrite  and  has  acquired 
a  standard  in  his  mind  of  the  general  character  of  the  party's 
writing  is  competent  to  testify  .^  A  witness  who  has  seen  a 
party  ^Tite  but  once  may  be  competent  to  testify  to  his  hand- 
writing ;  ^  and  the  court  may,  in  its  discretion,  allow  a  witness  to 
testify  who  has  seen  the  party  write  only  twice  in  32  years.* 
The  prosecutor  in  a  criminal  case,  while  it  was  pending, 
procured  the^  defendant  to  write  in  his  presence  that  he  might 
become  familiar  with  his  handwriting,  and  his  testimony  was 
admitted  as  to  the  handwriting.^  The  signature  of  a  person 
may  be  proved  by  a  witness  who  has  seen  him  write  his 
surname  only.^ 

Though  the  witness  has  never  seen  the  party  "WTite,  if  he 
has  carried  on  a  written  correspondence  with  him,  that  will  be 
sufficient  to  enable  him  to  speak  to  the  handwriting.'^     For 

1  See  opinion  of  the  court  in  Nelins  v.  State  (Ala.),  9  So.  193. 

3  Succession  of  Morvant,  45  La.  Ann.  207  ;  Berg  v.  Peterson,  49  Minn.  420. 

3  Bowman  v.  Sanborn,  5  Foster,  87  ;  Garrels  v.  Alexander,  4  Esp.  37. 

4  Wilson  V.  Van  Leer,  127  Pa.  St.  371. 

6  Reid  V.  State,  20  Ga.  681.  Held  otherwise  in  Springer  v.  Hall,  83  Mo. 
693.  See  also  Stranger  i\  Serle,  1  Esp.  14,  where  Lord  Kjenyon  rejected  the 
evidence  on  the  ground  that  the  defendant  might  have  written  differently 
from  his  common  writing,  through  design.  And  where,  after  a  suspicion 
had  been  raised  that  the  prisoner  had  sent  a  threatening  letter,  a  policeman 
was  sent  to  pay  tlie  prisoner  some  money,  and  to  procure  a  receipt  from 
him  for  it,  that  he  might  see  liim  write  and  be  able  to  speak  to  his  hand- 
wi-iting,  and  he  obtained  a  receipt  accordingly,  butliad  no  previous  knowl- 
edge of  the  prisoner's  handwriting,  Maule,  J.,  held  that  knowledge  so  ob- 
tained for  the  specific  purpose,  and  under  such  a  bias,  was  not  such  as  to 
make  the  evidence  admissible.  Reg.  v.  Crouch,  4  Cox  C.  C.  163.  And 
wliere  the  prisoner  was  tried  for  uttering  a  forged  clieck  on  which  he  was 
alleged  to  have  written  a  certain  indorsement  at  the  time  he  uttered  the 
check,  and  he  afterwards  wrote  his  name  and  the  same  words  as  were  in 
the  indorsement,  at  request  of  a  person,  on  another  piece  of  paper,  it  was 
lield  tiiat  tliis  paper  was  not  admissible  for  the  purpose  of  comparison. 
Reg.  V.  Aldridge,  3  F.  &  F.  781 .  A  witness  may  prove  the  identity  of  a  mark 
from  having  seen  the  party  make  it  on  several  occasions.  George  v.  Surrey, 
M.  &  M.  516. 

8  Lewis  V.  Sapio,  Moo.  &  Mai.  39,  per  Abbott,  C.  J.,  overruling  Powell  v. 
Ford,  2  Stark.  164  ;  3  E.  C.  L.  R. 

^  CampbeU  v.  Woodstock  Iron  Co.,  83  Ala.  351. 


212  PROOF  OF  HANDWRITING. 

when  letters  are  sent  directed  to  a  particular  person  and  on 
particular  business  and  an  answer  is  received  in  due  course,  a 
fair  inference  arises  that  the  answer  was  sent  by  the  person 
whose  handwriting  it  purports  to  be.^ 

And  so,  in  general,  if  a  witness  has  received  letters  from 
the  party  in  question  and  has  acted  upon  them,  it  is  a  sufficient 
ground  for  stating  his  belief  as  to  the  handwriting.^  And 
while  the  receipt  of  letters,  though  the  witness  has  never  done 
any  act  upon  them,  has  been  held  sufficient,^  it  is  the  law  of 
the  present  day  that  a  witness  is  incompetent  who  has  merely 
seen  the  writings  and  has  not  communicated  with  the  alleged 
writer  Avith  regard  to  them,  nor  acted  upon  them.  The  mere 
receipt  of  friendly  letters  is  said  not  to  be  enough :  there 
must  have  been  some  admission  or  acquiescence  equivalent  to 
an  acknowledgement  that  the  person  claimed  was  the  writer, 
independent  of  the  receipt  of  the  letters  and  the  contents 
thereof ;  *  there  must  be  something  which  assures  the  re- 
cipient of  the  letters,  in  a  responsible  way,  of  their  genuine- 
ness.^ 

Where  a  witness  who  had  never  seen  the  defendant,  but 
had  corresponded  with  a  person  of  the  defendant's  name,  living 
at  the  place  where  the  defendant  resided,  and  where,  ac- 
cording to  other  evidence,  there  was  no  other  person  of  the 
same  name,  stated  that  the  handwriting  in  question  was  that 
of  the  person  with  Avhom  he  had  corresponded,  the  evidence 
was  held  sufficient.^  On  an  information  for  libel,  in  order  to 
show  that  certain  letters  were  in  the  handAvriting  of  the 
defendant,  a  witness  proved  that  though  he  had  never  seen 
the  defendant  write,  he  had  seen  a  number  of  letters  which 
purported  to  have  come  from  him  in  the  subject  of  a  cause  in 
Avhich  he  Avas  engaged  on  one  side,  and  the  Avitness  on  the  other 
side  ;  and  Lord  Tenterden,  C.  J.,  held  that  the  Avitness  Avas 

1  Gary  v.  Pitt,  per  Lord  Kenyon,  Peake  Ev.  85.  And  see  Page  v.  Hemans, 
14  Me.  478  ;  State  v.  Gay,  94  N.  C.  814  ;  McKonkey  v.  Gaylord,  1  Jones'  L. 
94  ;  Chaffee  v.  Taylor,  3  Allen,  598 ;  Thomas  v.  State,  103  Ind.  417  ;  Robin- 
son Consohdated  Min.  Co.  v.  Craig,  4  N.  Y.  St.  R.  478. 

2  Thorpe  v.  Gibsburne,  2  C.  &  P.  21  ;  12  E.  C.  L.  R. 
2  Doe  V.  Wallinger,  Mann.  Index,  131. 

4  Flowers  v.  Fletcher  (W.  Va.),  20  S.  E.  870.     And  see  Gibson  v.  Furniture 
(^o.,  96  Ala.  857  ;  Freeman  v.  Brewster,  93  Ga.  648. 
6  Pinkham  v.  Cockell,  87  Mich.  265. 
fi  Harrington  v.  Fry,  1  Ry.  &  Moo.  90, 


PROOF  OF  HANDWRITING.  213 

competent  to  prove  the  defendant's  handwriting.^  And  where 
a  witness  for  the  defendant  stated  that  he  had  never  seen  the 
party  in  question  write,  but  that  his  name  was  subscribed  to  an 
affidavit  Avhich  had  been  used  by  the  plaintiff,  and  that  he  had 
examined  that  signature  so  as  to  form  an  opinion  which 
enabled  him  to  say  that  he  believed  the  handwriting  in  question 
was  genuine,  this  was  held  by  Park,  J.,  to  be  sufficient,^  and 
so  when  the  witness  had  received  promissory  notes  which  the 
party  had  paid.^  And  the  testimony  of  an  officer  of  a  bank 
who  was  in  the  habit  of  paying  the  party's  checks  has  been 
admitted.*  And,  to  prove  a  forgery,  the  testimony  was 
received  of  one  who  had  once  carried  to  a  bank  a  large  number 
of  bank  notes  which  had  been  all  paid,  though  he  had  never 
seen  either  the  president  or  cashier  write.^  And  a  successor 
in  office  who  has  given  frequent  examination  to  his  predecessor's 
handwriting  is  a  competent  witness.^  But  where  an  attorney 
for  three  defendants  stated  that  he  did  not  know  the  hand- 
writing of  one  of  the  defendants,  but  before  undertaking  to 
defend  the  action  he  had  required  a  retainer  signed  by  all 
those  defendants,  and  had  received  a  retainer  proporting  to  be 
signed  by  them  all,  upon  which  he  had  acted,  it  was  held  that 
the  attorney  was  not  competent  to  prove  the  handwriting  of 
the  one  defendant,  for  the  other  two  defendants  might  have 
signed  the  retainer  for  him  with  his  assent." 

It  is  necessary  to  recall  these  leading  principles  of  proof  of 
handwriting  by  direct,  as  introductory  to  the  consideration  of 
the  various  methods  of  proof  by  indirect,  evidence. 


Section  II. 
Proof  hy  Indirect  Evidence. 

Evidence  of  similitude  of  handwriting  by  the  comparison 

1  Rex  V.  Slaney,  5  C.  &  P.  213  ;  24  E.  C.  L.  R. 

2  Smith  V.  Sainsbury,  5  C.  «fe  P.  196  ;  24  E.  C.  L.  R. 

3  Johnson  v.  Deverne,  19  Johns.  134. 

*  Coffin's  Case,  4  City  Hall  Rec.  53.  And  see  Miirieta  v.  Wolfhagen,  2  C. 
&  K.  744  ;  Snell  v.  Bray,  56  Wis.  156  ;  Salazar  v.  Taylor,  33  Pac.  369.  But 
such  testimony  could  not  be  received  if  some  of  the  checks  paid  were  forged. 
Brigham  v.  Peters,  1  Gray,  139. 

6  Com.  V.  Carey,  2  Pick.  47.  «  Burdell  v.  Taylor,  89  Cal.  613. 

7  Drew  V.  Prior,  5  M.  &  Gr.  264 ;  44  E.  C.  L.  R. 


214  PROOF  OF  HANDWRITING. 

of  controverted  writing  with  the  admitted  or  proved  writing 
of  the  party,  made  by  a  witness  who  has  never  seen  the  party 
write,  nor  has  any  knowledge  of  his  handAvriting,  and  who 
arrives  at  the  inference  that  it  is  his  handwriting  because  it  is 
like  some  other  which  is  so,^  is  a  mode  of  proof  which  has  been 
much  lauded  by  writers  on  the  civil  law,  and  is  commonly 
admitted  in  those  countries  whose  jurisprudence  is  founded  on 
that  system. 

All  evidence  of  handwriting  except  where  the  witness  sa.w 
the  disputed  document  written  is,  in  a  sense,  in  its  nature  com- 
parison. It  is  the  belief  which  a  witness  entertains  upon 
comparing  the  writing  in  question  with  an  exemplar  in  his 
mind  derived  from  some  previous  knowledge.^  But  that  is 
not  what  is  meant  in  law  by  proof  of  handwriting  by  comparison, 

Formerly  a  document  could  not  be  proved  by  comparing  the 
handwriting  with  other  handwriting  of  the  same  party  ad- 
mitted to  be  genuine.^  A  witness  having  no  previous  knowl- 
edge of  the  handwriting  of  a  party  could  not  be  permitted  to 
testify  as  to  its  authenticity  from  a  mere  comparison  of  hands 
in  court.*  He  might  refresh  his  memory  by  inspecting  genuine 
writing ;  but  he  was  incompetent  if  such  inspection  enabled 
him  to  speak  only  from  comparing  the  two  signatures.^  He 
must  swear  to  the  correspondence  of  the  signatures  with  an 
example  existing  in  his  own  mind.^  Such  evidence,  however, 
was  admissible  in  corroboration  of  other  evidence;'''  though 
it  has  been  held,  it  would  not  invalidate  the  positive  testimony 
of  an  impeached  witness.^ 

This  rule  as  to  comparison  did  not  apply  to  the  court  or  jury 

1  Benth.  Jud.  Ev.  b.  iii.  c.  7  ;  Rex  v.  De  la  Motte,  21  St.  Tr.  810. 

2  Doe  V.  Suckermore,  5  Ad.  &  E.  ;  Berg  v.  Peterson,  49  Minn.  420. 

3  Burr  V.  Harper,  Holt  N.  P.  421  ;  U.  S.  v.  Craig,  4  Wash.  C.  C.  729  ; 
Hutchin's  Case,  4  City  Hall  Rec.  119  ;  Com.  v.  Smith,  6  S.  &  R.  571  ;  Pa.  v. 
McKee,  Addison,  33  ;  Jackson  v.  Phillips,  9  Cow.  94  ;  Root's  Adm.  v.  Rite's 
Adm.,  1  Leigh,  216  ;  Martin  v.  Taylor,  1  Wash.  C.  C.  1  ;  Pope  v.  Askew,  1 
Ired.  L.  16. 

*  Wilson  V.  Kirkland,  5  Hill,  182.     See  Guflfrey  v.  Deeds,  5  Cas.  378. 

5  McNair  v.  Com.,  2  Cas.  388. 

6  Kinney  v.  Flynn,  2  R.  I.  319  ;  Hopkins  v.  Maguire,  35  Me.  78. 

■'  McCorkle  v.  Binns,  5  Binn.  349  ;  Farmer's  Bk.  v.  Whitehill,  10  S.  &  R. 
110 ;  Bank  of  Pa.  v.  Jacob's  Adm.,  1  P.  &  W.  161  ;  Boyd's  Adm.  v.  Wilson, 
1  P.  &  W.  211  ;  Myers  v.  Foscan,  3  N.  H.  47  ;  Com.  v.  Smith,  8  S.  &  R.  571 ; 
Moody  V.  Rowell,  17  Pick.  490  :  Richardson  v.  Newcomb,  21  Pick.  315. 

8  Bell  V.  Norwood,  7  La.  95. 


PROOF  OF  HANDWRITING.  215 

who  might  compare  the  two  documents,  ah'eady  properly  in 
evidence  in  the  cause,  and  from  such  comparison  form  a  judg- 
ment upon  the  genuineness  of  the  handwriting.^  In  such  a 
case  the  comparison  may  be  made  with  or  without  the  aid  of 
experts.''  Other  instruments  or  signatures  were  inadmissible 
for  comparison  only.^  And  the  rule  which  excludes  extrinsic 
papers  and  signatures  is  substantially  the  same  in  the  direct 
and  cross-examination.  Touching  the  admissibility  of  the 
writings,  it  would  make  no  difference  whether  they  were  used 
to  test  the  witness  as  an  expert,  or  to  test  his  knowledge  of 
the  handwriting  of  the  plaintiff.* 

Nor  did  the  rule  apply  in  the  case  of  ancient  documents. 
Authentic  ancient  writings  might  be  jjut  into  the  hands  of  a 
witness,  and  he  might  be  asked  whether  upon  a  comparison  of 
those  with  the  document  in  question  he  believed  the  latter  to 
be  genuine.^  Here  the  course  is  to  produce  other  documents 
either  admitted  to  be  genuine  or  proved  to  have  been  respected 
and  acted  upon  as  such  by  all  parties,  and  to  call  experts  to 
compare  them,  and  to  testify  their  opinion  concerning  the 
genuineness  of  the  instruments  in  question.^ 

In  these  excepted  cases,"^  the  evidence  is  admitted,  it  is  said, 
of  necessity,  in  the  former  case  because  it  is  not  possible  to 
prevent  the  jury  from  making  such  comparison,  and  therefore 
it  is  best,  as  was  remarked  by  Lord  Denman,*  for  the  court 

1  Griffiths  V.  Williams,  1  Cr.  &  J.  47  ;  Solitat'.  Yarrow,  1  Moo.  &  R.  133 ; 
Strother  v.  Lucas,  6  Pet.  763  ;  Thomas  v.  Herlacker,  1  Dall.  14  ;  Woodward 
et  al.  V.  Spiller,  1  Dana,  180  ;  Adams  v.  Field,  21  Verm.  356  ;  Henderson  v. 
Hackney,  16  Ga.  521. 

2  1  Greenl.  on  Ev.  §  578 ;  State  v.  Scott,  45  Mo.  302  ;  Huff  t'.  Nims,  11 
Neb.  368 ;  Grand  Id.  Bk.  Co.  v.  Shoemaker,  31  Neb.  124. 

3  Van  Wyck  v.  Mcintosh,  4  Kern.  439  ;  Bishop  v.  State,  30  Ala.  34  ;  Miles 
V.  Loomis,  75  N.  Y.  288. 

*  Rose  V.  First  Natl.  Bank,  91  Mo.  399. 

6  Doe  V.  Tarver,  Ry.  &  Moo.  N.  P.  C.  141  ;  7  East,  282  ;  West  v.  State,  2 
Zab.  212. 

6  1  Greenl.  on  Ev.  (14th  Ed.)  674.  See  State  v.  Clinton,  67  Mo.  380 ; 
Springer  v.  Hall,  83  Mo.  693  ;  State  v.  Scott,  siqyra. 

">  AUport  V.  Meek,  4  C.  &  P.  267  ;  Bromage  v.  Rice,  7  Id.  548  ;  Wadding- 
ton  V.  Cousins,  Id.  595 ;  Griffith  v,  Williams,  1  C.  &  J.  47  ;  Doe  d.  Perry  v. 
Newton,  1  N.  &  P.  1  ;  and  5  A.  &  E.  514 ;  Solita  v.  Yarrow,  1  M.  &  R.  133 ; 
Griffits  V.  Ivery,  11  A.  &  E.  222. 

8  In  Doe  d.  Perry  v.  Newton,  ut  supra.  Fitzwalter  Peerage,  10  C.  &  F. 
193  ;  Doe  d.  Jenkins  v.  Davies,  10  Q.  B.  314  ;  16  L.  J.  Q.  B.  228.  And  see 
Reg.  V.  Taylor,  6  Cox's  C.  C.  58  ;  State  v.  Scott,  45  Mo.  302. 


216  PROOF  OF  HANDWRITING. 

to  enter  with  the  jury  into  that  inquiry,  and  do  the  best  it  can 
under  circumstances  which  cannot  be  helped ;  in  the  latter, 
because  from  the  lapse  of  time  no  living  person  can  have  any 
knowledge  of  the  handwriting  from  his  own  observation,^  and 
because  in  ancient  documents  it  often  becomes  a  pure  question 
of  skill,  the  character  of  the  handwriting  varying  with  the  age, 
and  the  discrimination  of  it  being  materially  assisted  by  anti- 
quarian researches.^ 

The  objections  which  have  been  urged  to  receiving  other  in- 
struments, for  the  purpose  of  comparison,  have  been  the  mul- 
tiplying of  collateral  issues ;  the  danger  of  fraud  or  unfairness 
in  selecting  instruments  for  that  purpose,  from  the  fact  that 
handwriting  is  not  always  the  same,  and  is  affected  by  age  and 
by  the  various  circumstances  which  may  attend  the  writing ; 
and  the  surprise  to  which  a  party  against  whom  such  evidence 
is  produced  may  be  sul^jected.^ 

The  common-law  rule,  with  its  exceptions,  is  followed, 
generally,  in  the  Federal  courts,^  and  also  in  the  courts  of  some 
of  the  States.  In  Missouri  writings  admitted  to  be  genuine, 
which  are  already  in  the  case,  can  be  used  for  comparison  only 
when  no  collateral  issue  can  be  raised  concerning  them.^  In 
Alabama  a  comparison  may  be  instituted  between  writings 
admitted  to  be  genuine  ;  ^  but  extraneous  papers  are  inadmis- 
sible for  comparison.'  The  rule  forbidding  proof  by  compar- 
ison has  been  recently  affirmed  in  Maryland  ;  ®  and  in  Lousiana 
the  courts  have  refused  to  admit  this  kind  of  proof .^    In  Illinois 

1  Per  Patterson,  J.,  in  Doe  d.  Mudd  v.  Suckermore,  ut  supra.  And  see 
Clark  V.  Wyatt,  15  Ind.  271, 

2  Per  Coleridge,  J.,  Id. 

3  See  opinion  of  Wagner,  J.,  in  State  v.  Scott,  45  Mo.  302, and  of  Dickin- 
son, J.,  in  Morrison  v.  Porter,  35  Minn.  425.  See  "also  Tucker  v.  Kellogg, 
8  Utah  11. 

*  Moore  v.  U.  S.,  91  U.  S.  270  ;  Blewett  v.  U.  S.,  10  Ct.  of  CI.  235  ;  U.  S. 
V.  McMiUan,  29  Fed.  Rep.  247  ;  U.  S.  v.  Pendergast,  32  Fed.  Rep.  198  ;  Stokes 
V.  U.  S.,  157  U.  S.  187. 

6  Rose  V.  First  Nat'l  Bank,  91  Mo.  399. 

6  Nelins  v.  State  (Ala.),  9  So.  193. 

"  Bishop  V.  State,  30  Ala.  34  ;  Kirksey  v.  Kirksey,  41  Ala.  626  ;  Hester  v. 
Roberts,  58  Ala.  331  ;  Moon's  Adm.  v.  Crowder,  72  Ala.  79  ;  Gibson  v.  Trow- 
bridge Furniture  Co.,  96  Ala.  357. 

8  Tome  V.  Parkersburg  R.  R.  Co.,  39  Md.  92 ;  Herrick  v.  Swomley,  56  Md. 
439. 

9  State  V.  Fritz,  22  La.  Ann.  55.  But  on  a  trial  for  bigamy  the  defendant's 
letters  were  proved  by  comparison.     State  V'.  Barrow,  31  La.  Ann,  691. 


PROOF  OF  HANDWRITING.  2lT 

disputed  handwriting  "  cannot  be  proved  by  a  witness  exam- 
ining and  comparing  the  signature  in  controversy  with  the 
recognized  signature  of  the  person  whose  signature  is  in 
issue."  ^ 

In  North  Carolina  an  expert  may  compare  the  disputed 
signatures  ^vith  papers  admitted  to  be  genuine,  which  are 
already  in  evidence ;  but  the  jury  may  not  make  the  compari- 
son.2 

In  Kentucky  a  comparison  can  be  made  neither  by  the  jury 
nor  by  experts.^ 

In  New  York  the  statute  permits  a  comparison  of  a  disputed 
handwriting  with  a  genuine  paper  to  be  made  by  witnesses. 
But,  it  is  held,  this  does  not  authorize  an  expert  to  testify 
positively  as  to  the  writing.  He  should  be  confined  to  an 
expression  of  his  opinion  growing  out  of  the  comparison.* 

But  by  the  Texas  Code  of  Criminal  Procedure  ^  it  is  provided 
that  comparison  of  handwriting  may  be  made  b}^  experts  or 
the  jury.     And  other  States  have  similar  provisions.^ 

A  witness  not  an  expert  may  not  testify  as  to  his  opinion 
from  comparison,  as  to  the  genuineness  of  a  signature.  This 
rule  is  not  changed  by  the  fact  that  he  saw  the  genuine  one  exe- 
cuted, unless  he  testifies  that  by  that  means  he  could  recoo-nize 
the  handwriting.^ 

In  many  of  the  States  of  this  Union  experts  may  testify  as 
to  the  genuineness  of  a  signature  by  comparison  with  other 

1  Riggs  V.  Powell  142  111.  453.  See  also  Kerwin  v.  Hill,  37  111.  209  ; 
Massey  v.  Bank,  104  111.  330 ;  Bevan  v.  Atlanta  Natl.  Bank,  142  111.  302. 
But  here,  as  was  said  in  a  late  case,  and  as  has  been  heretofore  laid  down, 
"  wherever  that  rule  prevails,  there  is  also  the  exception  that  if  the  instru- 
ment to  be  used  as  a  standard  is  properly  in  evidence  in  the  case  for  other 
purposes,  then  the  signature  or  paper  in  question  may  be  compared  with  it 
by  the  jury."  Rogers  v.  Tyley,  144  111.  652  ;  Hirarod  r.  Oilman,  147  111. 
293.     And  see  Stokes  v.  U.  S.,  supra. 

2  Yates  V.  Yates,  76  N.  C.  142  ;  Pope  v.  Askew,  1  Ired.  16 ;  Outlaw  v. 
Hurdle,  1  Jones,  150.     And  see  Jarvis  ii.  Vanderford  (N.  C),  21  S.  E.  302. 

«  Fee  V.  Taylor,  83  Ky.  259  ;  Hawkins  v.  Grimes,  13  B.  Mon.  257. 

*  People  V.  Severance,  67  Hun.  182. 

>  Art.  754.  And  see  Heacock  r.  State,  13  Tex.  Grim.  App.  97.  But  the 
jury  may  not  take  into  their  room  for  comparison  papers  and  letters  sub- 
mitted to  experts.     Ghester  v.  State,  23  Tex.  Grim.  App.  577. 

*  Nebraska  Gode,  §  344  ;  and  Oregon  Gode  of  Givil  Procedure,  §  755  ; 
Richardson  v.  Green  (G.  G.  App.  9th  Ct.),  61  Fed.  Rep.  423. 

'  Wimbish  v.  State,  89  Ga.  294.  And  see  Mixer  r.  Bennett.  70  la.  329  •, 
Baker  v.  Mygatt,  14  la.  131  ;  McKny  r.  Lasher,  42  Hiui,  270. 


218 


PROOF  OF  HANDWRITING. 


writings  whether  relevant  to  the  issue  or  not.  Such  is  the  rule 
in  Maine,  New.  Hampshire,  Massachusetts,  Mississippi,  Ver^ 
mont,  Virginia,  Ohio,  California,  and  Connecticut.^ 

In  Utah  irrelevant  papers  may  be  introduced  for  purposes 
of  comparison  when  admitted  by  the  parties  to  be  genuine.^ 

In  Kansas  writings  admitted  to  bd'genuine  may  be  compared 
by  the  jury  with  the  disputed  document.^ 

In  Indiana  the  cases  are  in  great  conflict.  In  a  recent  case 
a  witness  was  admitted  to  testify  as  an  expert  upon  a  compari- 
son of  the  handwriting  of  the  signature  to  the  note  in  suit  with 
specimens  of  the  party's  handwriting  admitted  to  be  genuine, 
as  to  the  genuineness  of  the  signature  to  the  note.*  The  signa- 
tures sought  to  be  used  in  comparison,  if  not  to  papers  in  the 
cause,  nor  in  evidence,  onust  he  admitted  to  he  genuine  hy  the 
party  against  lohom  the  jxq^er  is  sought  to  he  used.^ 

In  binding  all,  papers  not  otherwise  in  the  case  cannot  be 
received  for  purposes  of  comparison.^  But  where  the  party  him- 
self being  on  the  stand  in  his  own  behalf  denied  his  own  sig- 
nature when  it  was  shown  to  him,  and  in  cross-examination 
admitted  signatures  claimed  to  be  identical  in  character ;  these 
last  were  allowed  to  go  to  the  jury  for  comparison.^ 

1  People  V.  Mitchell,  93  Cal.  590  ;  Calkins  v.  State,  14  Ohio  St.  223  ;  State 
V.  Ward,  39  Vt.  225  ;  State  v.  Hopkins,  50  Vt.  316  ;  Harriot  v.  Sherwood, 
82  Va.  1  ;  Wilson  v.  Beauchamp,  50  Miss.  24  ;  State  v.  Hastings,  58  N.  H. 
452  ;  State  v.  Clark,  54  N.  H.  456  ;  State  v.  Thompson.  80  Me.  194  ;  Wood- 
man V.  Dana,  53  Me.  13  ;  Richardson  v.  Newcomb,  21  Pick.  815  ;  Demerritt 
V.  Randall,  116  Mass.  331  ;  Lyon  v.  Lyman,  9  Conn.  55. 

2  Tucker  v.  Kellogg,  8  Utah,  11.  Prof.  Greenleaf  wrote:  "If  it  were 
possible  to  extract  from  the  conflicting  judgments  a  rule  which  would  find 
support  from  the  majority  of  them,  perhaps  it  would  be  found  not  to  extend 
beyond  this  :  that  such  papers  can  be  offered  in  evidence  to  the  jury,  only 
when  no  collateral  issue  can  be  raised  concerning  them  ;  which  is  only 
where  the  papers  are  either  conceded  to  be  genuine  or  are  such  as  the  party 
is  estopped  to  deny  ;  or  are  papers  belonging  to  the  witness  who  was  him- 
self previously  acquainted  with  the  party's  handwriting,  and  who  exhibits 
them  in  confirmation  and  explanation  of  his  own  testimony."  1  Greenl. 
Ev.  §  581. 

3  State  V.  Zimmerman,  47  Kan.  242  ;  Macomber  v.  Scott,  10  Kan.  335. 

*  Forgey  v.  First  Natl.  Bank,  66  Ind.  123.  And  see  Hazard  v.  Vickery, 
78  Ind.  64.     See  also  Morrison  v.  Porter,  35  Minn.  525. 

5  Shorb  V.  Kinzie.  80  Ind.  580.  And  see  Brodick  v.  Hunt,  43  Ind.  381  ; 
Huston  V.  Schindler,  46  Ind.  38  ;  Thomas  v.  State,  103  Ind.  419  ;  Merritt  V. 
Shaw,  33  N.  E.  657. 

6  Vinton  v.  Peck,  14  Mich.  287  :  Re  Foster's  Will,  34  Mich.  21  ;  North  v. 
McConnell,  42  Mich.  473.  ''  Deitz  v.  Fourth  Natl.  Bank,  69  Mich.  287. 


PROOF  OF  HANDWRITING.  219 

But  when  hanchvriting  is  to  be  proved  by  comparison,  the 
standard  used  for  the  purpose  must  be  genuine  and  original 
writing,  and  must  be  an  admitted  manuscript,  or  be  established 
by  clear  and  undoubted  proof  .^  Impressions  of  writings  taken 
by  means  of  a  press,  and  duplicates  made  by  a  copying  machine, 
are  not  original,  and  cannot  be  used  as  standards  of  comparison.^ 

The  question  of  the  admissibility  of  the  document  to  be  used 
as  a  standard  is  a  preliminary  question  for  the  determination 
of  the  court.^ 

So  far  as  the  judge's  decision  is  a  question  of  fact  merely, 
it  is  final,  if  there  is  any  proper  evidence  to  support  it.  Excep- 
tions to  its  admission  as  a  standard  will  not  be  sustained  unless 
it  clearly  appears  that  there  was  some  erroneous  application  of 
the  principles  of  law  to  the  facts  of  the  case,  or  that  the  evi- 
dence was  admitted  without  proper  proof  of  the  qualifications 
requisite  for  its  competency.*  The  rule  is  otherwise,  however, 
in  New  Hampshire.  In  a  case  already  cited, ^  Sargent,  C.  J., 
speaking  of  the  introduction  of  evidence  to  prove  the  genuine- 
ness of  the  handwriting  offered  as  a  standard,  said :  "  It  is  to  be 
received  and  then  the  jury  are  to  be  instructed  that  they  are 
first  to  find,  upon  aU  the  evidence  bearing  upon  that  point,  the 
fact  whether  the  writing  introduced  for  the  purpose  of  com- 
parison or  sought  to  be  used  for  that  purpose  is  genuine.  If 
they  find  it  is  not  so,  then  they  are  to  lay  this  writing,  and  all 
the  evidence  based  upon  it,  entirely  out  of  the  case,  but  if  they 
find  it  genuine  they  are  to  receive  the  writing  and  all  the  evi- 
dence founded  upon  it." 

The  rule  that  no  document  could  be  used  for  comparison 
unless  it  Avas  already  in  evidence  in  the  cause  ^  was  changed  in 

1  State  V.  Owen,  73  Mo.  440  ;  State  r.  Thompson,  80  Me.  194  ;  Hatch  v. 
State,  6  Tex.  Grim.  App.  384 ;  Heacock  v.  State,  13  Tex.  Grim.  App.  97 ; 
Costello  V.  Growell,  133  Mass.  353  ;  Baker  v.  Haines,  6  Whart.  284  ;  Gohen 
V.  Teller,  93  Pa.  St.  123. 

2  Gom.  V.  Eastman,  1  Gush.  189.  And  see  Van  Sickle  v.  People,  9  Mich. 
61  ;  Siwttiswood  v.  Weis,  66  Gal.  525  ;  Gohen  v.  Teller,  93  Pa.  St.  123. 

3  Egan  V.  Gowan,  2  Irish  Jurist,  N.  S.  394 ;  Hall  v.  Van  Vrankin,  64 
How.  Pr.  407  ;  Peck  v.  Gallaghan,  95  N.  Y.  73 ;  Gostello  v.  GroweU,  133 
Mass.  352 ;  Rowell  v.  Fuller,  59  Vt.  688. 

*  Rowell  V.  Fuller,  and  Gostello  v.  Growell,  supra. 

5  State  V.  Hastings,  53  N.  H.  461. 

6  Rex  V.  Morgan,  1  Moo.  &  Robb.  134  n.;  Hughes  r.  Rodgers,  8  M.  &  W. 
123 ;  Younge  v.  Horner,  1  G.  &  K.  751  ;  Doe  v.  Newton,  Bromage  v.  Rice, 
supra. 


220  PROOF  OF  HANDWRITING. 

England  by  the  Common  Law  Procedm-e  Act,i  which  provided 
that  comparison  of  a  disputed  writing  with  any  writing  proved 
to  the  satisfaction  of  the  judge  to  be  genuine,  shall  in  civil  cases 
be  permitted  to  be  made  by  witnesses,  and  such  writings,  and 
the  evidence  of  witnesses  respecting  the  same,  may  be  sub- 
mitted to  the  court  and  jury  as  evidence  of  the  genuineness  or 
otherwise  of  the  writing  in  dispute.  And  this  provisicHi  was 
extended  to  criminal  cases  by  a  later  statute.^  And  some  of 
the  states  of  this  country  have  enacted  laws  modelled  after  the 
English  statute.  This  is  the  case  in  New  york,^  Wisconsin,* 
Khode  Island,^  Georgia,^  and  New  Jersey.'^  In  the  last  named 
State  it  is  "  provided  nevertheless  that  where  the  handwriting 
of  any  person  is  sought  to  be  disproved  by  comparison  with 
other  writings,  not  admissible  in  evidence  in  the  cause  for  any 
other  purpose,  such  writings,  before  they  can  be  compared  with 
the  signature  or  writing  in  dispute,  must,  if  sought  to  be  used 
before  the  court  or  jury  by  the  party  in  whose  handAvriting 
they  are,  be  proved  to  have  been  written  before  any  dispute 
arose  as  to  the  genuineness  of  the  signature  or  writing  in  con- 
troversy." ^ 

And  in  New  York  it  has  been  held  that  the  act  authorizes 
only  the  admission  of  such  ^vritings  as  purport  to  be  in  the 
handwriting  of  the  person  the  genuineness  of  whose  signature  is 
disputed.  Therefore  specimens  of  the  handwriting  of  the  person 
who  is  alleged  to  have  forged  the  signature  in  question  are  not 
admissible.^ 

In  South  Carolina  on  an  indictment  for  forgery  the  rule  in 
that  State  was  stated  to  be  that  while  comparison  of  handwrit- 
ing is  inadmissible  as  an  original  means  of  ascertaining  the 
genuineness  of  a  signature,  it  may  be  admitted  in  aid  of  doubt- 
ful proof.     The  trial  judge  must  decide,  in  the  first  instance, 

1  17  and  18  Vict.  c.  125,  §  27.  See  Birch  v.  Ridgway,  1  F.  &  F.  270 ; 
Creswell  v.  Jackson,  2  F.  &  F.  24. 

2  28  Vict.  c.  18,  §  8.  3  Laws  of  1880,  c.  36. 

*  Laws  of  1871,  c.  226.  ^  Pub.  St.  of  R.  I.  (1882),  c.  214,  §  42. 

^  Georgia  Code,  §  3840.  Other  new  papers  which  it  is  proposed  to  intro- 
duce in  evidence  must  be  submitted  to  the  opposite  party  before  he  an- 
nounces himself  ready  for  trial.  A  failure  to  comply  with  this  provision 
will  not  cause  a  reversal  where  the  party  having  the  right  did  not  object 
at  the  proper  time.     Thomas  v.  State,  59  Ga.  784. 

'  Rev.  St.  of  New  Jersey,  p.  381,  §  19. 

8  Yeomans  v.  Petty,  40  N.  J.  Eq.  495  ;  In  re  Gordon's  WUl,  26  Atl.  268. 

9  Peck  v.  Callaghan,  95  N.  Y.  73. 


PROOF  OF  HANDWRITING.  221 

whether  sufficient  doubt  has  been  raised  to  authorize  the  com- 
parison. And  the  witnesses  speaking  to  the  comparison  need 
not  be  experts.*  But  those  unfamiliar  with  handwriting,  not 
being  competent  to  compare,  may  not  be  introduced  for  this 
purpose.2  Papers  by  which  the  comparison  is  to  be  made  must 
be  either  admitted,  acknowledged,  or  otherwise  proved  to  be 
in  the  handwriting  of  the  accused.^ 

In  Pennsylvania  "  evidence  by  comparison  of  handwriting  is 
not  allowed  as  independent  proof ;  "  but  extraneous  papers  may 
be  admitted  and  submitted  to  the  jury  for  comparison  in  con- 
firmation of  prior  evidence.  The  comparison  may  not  be  made 
by  experts.* 

In  Ohio,  however,  not  only  persons  who  have  knowledge  of 
the  handwriting  of  the  person  whose  writing  is  in  question 
may  testify,  but  experts.* 

Evidence  to  handA^Titing  is  subject  to  many  sources  of  fallacy 
and  error,  among  which  may  be  enumerated  tuition  by  the  same 
preceptor,  employment  with  other  persons  in  the  same  place  of 
business,  as  well  as  designed  imitation  or  disguise,  all  of  which 
are  frequently  causes  of  great  similarity  in  writing.  Men  in 
certain  businesses  or  professions  sometimes  adopt  peculiarities  of 
character,  though  less  frequently  than  formerly ;  and  there  are 
characteristic  peculiarities  indicative  of  age,  infirmity,  and  sex.^ 

Handwriting  is  sometimes  most  successfully  imitated.  On  a 
trial  for  forgery  of  bank-notes,  a  banker's  clerk  whose  name 
was  on  one  of  the  notes  swore  distinctly  that  it  was  his  hand- 
writing, while  he  spoke  hesitatingly  with  respect  to  his  genuine 
subscription.''  Lord  Eldon  mentioned  a  very  remarkable  in- 
stance of  the  uncertainty  of  this  kind  of  evidence.  A  deed  was 
produced  at  a  trial  on  which  much  doubt  was  thrown  as  a  dis- 
creditable transaction.  The  solicitor  was  a  very  respectable 
man,  and  was  confident  in  the  character  of  his  attesting  wit- 
nesses. One  of  them  purported  to  be  Lord  Eldon  himself,  and 
the  solicitor,  who  had  referred  to  his  signature  to  pleadings, 

1  State  V.  Ezekiel,  33  S.  C.  115.  And  see  Benedict  v.  Flanigan,  18  S.  C. 
508  ;  Graham  v.  Nesmith,  24  S.  C.  296. 

2  Weaver  v.  Whilden,  33  S.  C.  190.  »  State  v.  Ezekiel,  mjyra. 

*  Amrick  v.  Mitchell,  1  Norris,  311  ;  Ballentine  t\  White,  27  P.  F.  Smith, 
20  ;  Berryhill  v.  Kirchner,  96  Pa.  St.  489  ;  Travis  v.  Brown,  43  Pa.  St.  17  ; 
In  re  Rockey's  Estate,  155  Pa.  St.  455. 

^  Bell  V.  Brewster,  44  Ohio  St.  696.  ^  jjgx  v.  Johnson,  nt  sujjra. 

^  Rex  V.  Carsewell,  Burnett's  C.  L.  of  Scot.  502. 


222  PROOF  OF  HANDWRITING. 

had  no  doubt  of  its  authenticity,  yet  Lord  Eldon  declared  that 
he  had  never  attested  a  deed  in  his  life.^ 

In  a  case  in  Doctors'  Commons  the  learned  judge  repudiated 
the  common  objection  of  painting  or  touching,  as  a  reason  for 
inferring  fraud,  saying  that  there  could  scarcely  be  a  less  cer- 
tain criterion,  and  peremptorily  declined  the  use  of  a  glass  of 
high  powers,  said  to  have  been  used  by  the  professional  wit- 
nesses, observing,  in  substance,  that  glasses  of  high  powers, 
however  fitly  applied  to  the  inspection  of  natural  subjects, 
rather  tend  to  distort  and  misrepresent  than  to  place  such 
objects  in  their  true  light ;  especially  when  used  (their  ordinary 
application  in  the  hands  of  prejudiced  persons)  to  confirm  some 
theory  or  preconceived  opinion  .^  But  it  is  the  daily  practice 
of  courts  of  common  law  to  admit  the  artificial  aid  of  glasses 
and  lamps ;  and  on  an  indictment  for  forgery,  the  question  being 
whether  a  paper  had  originally  contained  certain  pencil-marks 
which  were  alleged  to  have  been  rubbed  out,  and  ink-writing 
written  in  their  stead,  the  opinion  of  an  engraver,  who  was  in 
the  habit  of  looking  at  minute  lines  on  paper,  and  had  ex- 
amined the  document  with  a  mirror,  was  held  to  be  receivable, 
although  of  no  weight  unless  confirmed.^  On  suit  on  a  promis- 
sory note  where  the  signature  was  denied,  one  skilled  in  the 
use  of  a  compound  microscope  was  allowed  to  testify  that  upon 
examination  of  the  paper  upon  which  the  note  was  written, 
under  the  microscope  he  discovered  traces  of  pencil-marks  and 
that  the  fibre  of  the  paper  had  the  appearance  of  having  been 
broken  before  the  ink  was  laid  on.* 

Enlarged  copies  of  a  disputed  signature  or  writing  and  of 
those  used  as  comparisons  may  be  of  great  aid  to  a  jury  in  com- 
parisons and  examining  different  specimens  of  one's  handwrit- 
ing. And  for  this  reason,  and  also  for  greater  convenience,  it 
is  the  common  practice  to  admit  photographs  of  the  different 
signatures.^ 

1  Eagleton  v.  Kingston,  8  Vee.  473. 

2  Robson  V.  Rocke,  2  Addams,  79. 
8  Reg.  V.  Williams,  8  C.  &  P.  434. 
*  Bridgman  v.  Corey,  63  Vt.  1. 

6  Marcy  v.  Gray,  16  Gray  (Mass.),  161 ;  Rowell  v.  Fuller,  59  Vt.  588  ;  In 
re  Gordon's  Will,  268,  and  the  famous  Tichborne  Case. 


PROOF  OF  IIANDVvTJTIInG.  223 

Section  III. 
The  Reliability  of  Evidence  on  this  Subject. 

The  following  extract  from  a  learned  judgment  of  Sir  John 
NichoU  embodies  many  instructive  observations  upon  this  kind 
of  evidence :  "  This  court  has  often  had  occasion  to  observe, 
that  evidence  to  handwriting  is  at  best,  in  its  own  nature,  very 
inconclusive  ;  affirmative,  from  the  exactness  with  which  hand- 
writing may  be  imitated ;  and  negative,  from  the  dissunilarity 
which  is  often  discoverable  in  the  handwriting  of  the  same 
person  under  different  circumstances.  "Without  knowing  very 
precisely  the  state  and  condition  of  the  writer  at  the  time,  and 
exercising  a  very  discriminating  judgment  upon  these,  persons 
deposing,  especially,  to  a  mere  signature  not  being  that  of  such 
or  such  a  person,  from  its  dissimilarity,  however  ascertained  or 
supposed  to  be,  to  his  usual  handwriting,  are  so  likely  to  err, 
that  negative  evidence  to  a  mere  subscription,  or  signature,  can 
seldom,  if  ever,  under  ordinary  circumstances,  avail  in  proof, 
against  the  final  authenticity  of  the  instrument  to  which  that 
subscription,  or  signature,  is  attached.  But  such  evidence  is 
peculiarly  fallacious  where  the  dissimilarity  relied  upon  is  not 
that  of  general  character,  but  merely  particular  letters  ;  for  the 
slightest  peculiarities  of  circumstance  or  position,  as,  for  instance, 
the  writer  sitting  up  or  reclining,  or  the  paper  being  placed 
upon  a  harder  or  softer  substance,  or  on  a  plane  more  or  less 
inclined,  nay,  the  materials,  as  pen,  ink,  etc.,  being  different  at 
different  times,  are  amply  sufficient  to  account  for  the  same 
letters  being  made  variously  at  the  different  times  by  the  same 
individual.  Independent,  however,  of  anything  of  this  sort, 
few  individuals,  it  is  apprehended,  write  so  uniformly  that  dis- 
similar formations  of  particular  letters  are  grounds  for  con- 
cluding them  not  to  have  been  made  by  the  same  person."  ^ 

Very  similar  were  the  remarks  recently  made  concerning  this 
subject  in  the  course  of  a  learned  judgment  of  the  Prerogative 
Court  of  New  Jersey.  And  the  Ordinary  proceeded  further  to 
say  :  "  It  follows  that  unreliability  is  greater  when  the  disputed 
^Titing  is  short,  or  the  standards  for  comparison  are  meagre, 
or  are  all  written  at  one  time,  and  also  that  uncertainty  lessens 

1  Robson  r.  Rocke,  2  Addams,  79. 


224 


PROOF  OF  HANDWRITING. 


when  the  disputed  writing  is  long,  and  the  standards  are 
numerous  and  the  ])roducts  of  different  dates."  ^ 

The  difficuhy  of  j^roving  handwriting  is  greatly  increased 
where  it  is  studiously  disguised.  In  Webster's  case  anony- 
mous letters  written  in  a  disguised  hand  and  calculated 
to  divert  suspicion  from  tlie  defendant  had  been  sent  to 
a  newspaper  for  publication  .^  But  such  is  the  power  of 
habit,  that  though  persons  may  succeed  to  a  certain  extent  in 
disguising  their  writing,  they  commonly  fall  into  their  natural 
manner  and  characteristic  peculiarities  of  writing  ;  ^  such  pecu- 
liarities being  most  commonly  manifested  in  the  formation  of 
particular  letters,  or  in  the  mode  of  spelling  particular  words,* 
Judge  Taylor  instances  a  case  where  the  defendant  produced  a 
receipt  worded  as  follows  :  "  Received  the  Hole  of  the  above." 
Upon  being  required  to  write  a  sentence  containmg  the  word 
whole,  the  party  spelled  it  as  written  above,  even  retaining  the 
capital  11.^ 

A  tailor,  of  the  name  of  Alexander,  having  learned  that  a 
person  of  the  same  name  had  died,  leaving  considerable  property 
without  any  apparent  heirs  existing,  obtained  access  to  a  garret 
in  the  family  mansion,  and,  it  was  said,  found  there  a  collection 
of  old  letters  about  the  family.  These  he  carried  off,  and  with 
their  aid  fabricated  a  mass  of  similar  productions,  which,  it  was 
said,  clearly  proved  his  connection  with  the  family  of  the  de- 
ceased, and  the  Lord  Ordinary  decided  the  cause  in  his  favor  ; 
the  case,  however,  was  carried  to  the  Inner  House.  When  it 
came  into  court,  certain  circumstances  led  Lord  Meadowbank, 
then  a  young  man  at  the  bar,  to  doubt  the  authenticity  of  the 
documents.  One  circumstance  was,  that  there  were  a  number 
of  words  in  the  letters,  purporting  to  be  from  different  indi- 
viduals, spelt,  or  rather  misspelt,  in  the  same  way,  and  some 
of  them  so  peculiar,  that  on  examining  them  minutely,  there 
was  no  doubt  that  they  were  all  written  by  the  same  hand. 
The  case  attracted  the  attention  of  the  Inner  House.  The 
party  was  brought  to  the  clerk's  table,  and  was  examined  in  the 
presence  of  the  court.     He  was  desired  to  write  to  dictation  of 

1  McGill,  Ordinary,  in  Re  Gordon's  Will,  26  Atl.  268. 

2  Com.  V.  Webster,  5  Gush.  295. 

8  Per  Macdonald,  C.  J.,  in  Rex  v.  Bingham,  Horsham  Spr.  Ass.,  1811. 

*  Rex  ^\  Johnson,  sxipra. 

6  Taylor  on  Ev.  §  1669  n.,  p.  1586,  Text-Book  Series. 


PROOF  OF  HANDWRITING.  225 

the  Lord  Justice  Clerk,  and  he  misspelt  all  the  words  that  were 
misspelt  in  the  letters  in  precisely  the  same  way ;  and  this 
and  other  circumstances  proved  that  he  had  fabricated  all  of 
them  himself.  He  then  confessed  the  truth  of  his  having  writ- 
ten the  letters  on  old  paper,  which  he  had  found  in  the  garret ; 
and  this  result  was  arrived  at  in  the  teeth  of  the  testimony  of 
half  a  dozen  engravers,  all  saying  that  they  thought  the  letters 
were  ^Titten  by  different  hands. ^ 

It  is  even  more  difficult  to  depose  with  confidence  to  the 
identity  of  a  disguised  writing,  if  the  disguise  is  applied  to 
printed  characters,  and  Mr.  Baron  Rolfe  spoke  of  such  evidence 
as  of  no  value.2 

Eegarding  the  weight  to  be  attached  to  the  evidence  of 
skilled  -witnesses  as  to  the  identity  of  disputed  writings,  an 
opinion  to  which  reference  has  already  been  made  contains 
the  following  observations  :  "  Handwriting  is  an  art  concern- 
ing which  correctness  of  opinion  is  susceptible  of  demonstra- 
tion, and  I  am  fully  convinced  that  the  value  of  the  opinion 
of  every  handwriting  expert  as  evidence  must  depend  upon  the 
clearness  with  which  the  expert  demonstrates  its  correctness. 
That  demonstration  will  naturally  consist  in  the  indication  of 
similar  characteristics,  or  lack  of  similar  characteristics, 
between  the  disputed  writing  and  the  standards,  and  the  value 
of  the  expert's  conclusion,  will  largely  depend  upon  the  number 
of  those  characteristics  which  appear  or  are  wanting.  The 
appearance  or  lack  of  one  characteristic  may  be  accounted  to 
coincidence  or  accident,  but,  as  the  number  increases,  the 
probability  of  coincidence  or  accident  will  disappear,  until  con- 
viction will  become  irresistible.  Without  such  demonstration 
the  opinion  of  an  expert  in  handwriting  is  a  low  order  of  testi- 
mony, for,  as  the  correctness  of  his  opinion  is  susceptible  of 
ocular  demonstration,  and  it  is  a  matter  of  common  observation 
that  an  expert's  conclusion  is  apt  to  be  influenced  by  his  em- 
ployer's interest,  the  absence  of  demonstration  must  be  attrib- 
uted either  to  deficiency  in  the  expert  or  lack  of  merit  in  his 
conclusion.  It  follows  that  the  expert  who  can  most  clearly 
point  out  will  be  most  highly  regarded  and  most  successful.^ 

1  Related  by  Lord  Meadowbank  in  Reg.  v.  Humphreys,  infra.  And  see 
the  case  of  Smith  v.  Earl  Ferrers,  Shorthand  Rep.  1846. 

2  Webster's  Case,  5  Gush.  295;  Reg.  v.  Rush,  Norwich  Spr.  Ass.,  1849. 
8  In  re  Gordon's  WiU,  26  Atl.  268. 


226 


PROOF  OF  HANDWRITING. 


Every  reasonable  opportunity  should  be  afforded  to  test  the 
vul  lie  of  the  opinion  of  the  witness.  For  this  purpose  experts  may 
be  asked  on  cross-examination  to  make  comparisons  between 
two  signatures  of  a  witness  in  the  case — one  admitted  by  him 
to  be  genuine,  and  the  other  claimed  by  him  to  have  been 
written  by  some  one  else,  but  by  his  authority  and  direction.* 
And  they  may  be  asked  concerning  their  opinion  as  to  the 
genuineness  of  signatures  in  the  handwriting  of  any  one,  pre- 
pared for  the  purpose,^ 

1  Johnston  Harvester  Co.  v.  Milburn,  72  Mich.  265. 
*  Browning  v.  Gosnell  (Iowa),  59  N.  W.  340. 


CHAPTER  lY. 

VERIFICATION   OF   DATES   AND   TIME. 

Amongst  the  numerous  physical  and  mechanical  circum- 
stances which  have  occasionally  led  to  the  detection  of  forgery 
and  fraud,  a  discrepancy  between  the  date  of  writing  and  the 
Anno  Domini  water-mark  in  the  fabric  of  the  paper  is  one  of 
the  most  striking ;  ^  but  inasmuch  as  prospective  issues  of 
paper,  bearing  the  water-mark  of  a  succeeding  year,  are  occa- 
sionally made,  this  circumstance  is  not  always  a  safe  ground  of 
presumption  ;  ^  and  it  is  not  uncommon  among  manufacturers 
both  to  post-date  and  to  ante-date  their  paper-moulds.  A  wit- 
ness examined  in  1834  stated  that  he  was  then  making  moulds 
with  the  date  of  18^8,  under  a  special  order.^  In  an  old  case  a 
criminal  design  was  detected  by  the  circumstance  that  a  letter, 
purporting  to  come  from  Venice,  was  written  upon  paper  made 
in  England.* 

The  critical  examination  of  the  internal  contents  of  written 
instruments,  perhaps  of  all  others,  affords  the  most  satisfactory 
means  of  disproving  their  genuineness  and  authenticity,  espe- 
cially if  they  profess  to  be  the  productions  of  an  anterior  age. 
It  is  scarcely  possible  that  a  forger,  however  artful  in  the  exe- 
cution of  his  design,  should  be  able  to  frame  a  spurious 
composition  without  betraying  its  fraudulent  origin  by  pecu- 
liarities of  writing  or  orthography  characteristics  of  a  different 
age  or  period,  or  by  the  employment  of  words  of  later  intro- 
duction, or  by  the  use  of  them  in  a  sense  or  meaning  which 
they  did  not  then  bear,  or  by  some  statement  or  allusion  not 

^  Crisp  V.  Walpole,  2  Hagg.  521. 

2  A  Commissioner  of  the  Insolvent  Debtors'  Court,  sitting  at  Wakefield  in 
1836,  discovered  that  tlie  paper  he  was  then  using,  which  had  been  issued 
by  the  government  stationer,  bore  the  watei'-mark  of  1837. 

^  Rodger  v.  Kay,  12  Cases  in  Court  of  Session,  317  ;  Miller  v.  Eraser,  4  Id. 
55  ;  4  Murray's  Cases  in  Jury  Court,  118. 

*  Best  on  Presumptions,  56  ;  referring  to  Moore,  817. 

227 


228  VERIFICATION  OF  DATES  AND  TIME. 

in  harmony"  with  the  known  character,  opinions,  and  feelings 
of  the  pretended  writer,  or  with  events  or  circumstances  which 
must  have  been  known  to  him,  or  by  a  reference  to  facts  or 
modes  of  thought  characteristic  of  a  later  or  a  diiferent  age 
from  that  to  which  the  writing  rehites.  A  writer,  eminent 
alike  for  his  critical  sagacity  and  for  his  imaginative  genius, 
declared  that  he  had  met  in  his  researches  with  only  one  poem 
which,  if  it  had  been  produced  as  ancient,  could  not  have  been 
detected  on  internal  evidence.^  Judicial  history  presents  in- 
numerable examples  in  illustration  of  the  soundness  of  these 
principles  of  judgment,  of  which  the  following  are  not  the 
least  interesting. 

A  deed  was  offered  in  evidence,  bearing  date  the  13th  of 
November  in  the  second  and  third  years  of  the  reign  of  Philip 
and  Mary,  in  which  they  were  called  ^'■Mng  and  queen  of 
Spain  and  both  Sicilies,  and  diihes  of  Burgundy,  Milan,  and 
Brabant,"  whereas  at  that  time  they  were  formally  styled 
"  princes  of  Spain  and  Sicily,"  and  Burgundy  was  never  put 
before  Milan,  and  they  did  not  assume  the  title  of  king  and 
queen  of  Spain  and  the  two  Sicilies  until  Trinity  Term  fol- 
lowing.2 

A  most  curious  and  instructive  case  of  this  kind  was  that 
of  Alexander  Humphreys,  before  the  High  Court  of  Justiciary 
at  Edinburgh,  April,  1839,  for  forging  and  uttering  several 
documents  in  support  of  a  claim  advanced  by  him  to  the 
earldom  of  Stirling  and  extensive  estates.  One  of  those  docu- 
ments purported  to  be  an  excerpt  from  a  charter  of  Novodamus 
of  King  Charles  I.,  bearing  date  the  Tth  of  December,  1639,  in 
favor  of  William  the  first  Earl  of  Stirling,  and  making  the 
honors  and  estates  of  that  nobleman,  which  under  previous 
grants  were  inheritable  only  by  heirs  male,  descendable  in 
default  of  heirs  male  to  his  eldest  heirs  female,  without  division, 
of  the  last  of  such  heirs  male,  and  to  the  heirs  male  of  the  body 
of  such  heirs  female  respectively.  This  excerpt  purported  in 
the  testatum  clause  to  be  witnessed  by  Archbishop  Spottiswood 
"  our  chancellor,"  whereas  he  died  on  the  26th  of  l^ovember, 
1639,  and  it  was  proved  by  the  register  of  the  Privy  Council 
that  he  resigned  the  office  of  chancellor,  and  that  the  Gre;it 
Seal   was   delivered   to   the   custody  of   James,  Marquess   or 

1  2  Lockhart's  Life  of  Scott,  c.  ix. 

«  Mossom  V.  Ivy,  10  St.  Tr.  616  ;  and  vide  Coke's  First  Inst.  7  b. 


I 


VERIFICATION  OF  DATES  AND  TIME.  229 

Hamilton,  on  the  13th  of  November,  1638,  more  than  a  year 
before  the  date  of  the  pretended  charter,  and  that  there  was 
an  interregnum  in  the  office  of  chancellor  until  the  appoint- 
ment of  Lord  Loudon  on  the  30th  of  September,  1641.  A 
genuine  charter,  dated  four  days  after  the  pretended  charter, 
was  witnessed  by  James,  Marquess  of  Hamilton.  The  circum- 
stance was  significant,  that  in  the  catalogue  of  the  Scottish 
chancellors,  appended  to  Spottiswood's  History  and  other 
works,  no  mention  is  made  of  the  interval  between  the  resigna- 
tion of  the  Archbishop  of  St.  Andrews  and  the  appointment 
of  the  Earl  of  Loudon.  In  the  margin  of  the  excerpt  was  a 
reference  to  the  Register  of  the  Great  Seal,  book  57,  in  the 
following  form :  "  Reg.  Mag.  Sig.  lib.  57  ; "  but  it  was  proved 
that  this  mode  of  marking  and  reference  did  not  commence 
until  1806,  when  the  registers  were  rebound,  in  order  that  they 
should  have  one  title ;  and  that  previously  to  that  time  the 
title  of  those  documents  was,  "  Charters,  book  i.,  book  ii.,"  and 
so  on.  In  the  supposed  excerpt  the  son  of  the  first  earl  was 
styled  "  nostra  consanguineo,^'*  a  mode  of  address  never  adopted 
in  old  charters  in  regard  to  a  commoner  ;  and  there  were  other 
internal  incongruities.  This  document  consisted  of  several 
leaves  stitched  together,  of  a  brown  color,  as  well  under  the 
stitching  as  where  open ;  whereas  if  the  stitching  had  been 
old,  the  part  of  the  paper  not  exposed  to  the  atmosphere  would 
have  been  whiter  than  the  rest.  Around  the  margin  of  this 
excerpt  were  drawn  red  lines ;  but  it  was  proved  by  official 
persons  famiHar  with  the  extracts  of  the  period,  that  such  lines 
were  not  introduced  into  the  Chancery  Office  till  about  1780. 
A  series  of  anachronisms  conclusively  disproved  the  authenticity 
of  several  other  documents  adduced  by  the  prisoner  in  support 
of  his  claim.  One  of  those  documents  was  a  copper-plate  map 
of  Canada  by  Guillaume  de  Tlsle,  "  Premier  Geographe  du 
Roi,  avec  privilege  pour  vingt  ans,"  bearing  the  date  of  1703, 
on  the  back  of  which,  amongst  other  supposed  attestations, 
were  a  note  purporting  to  be  in  the  handwriting  of  Flechier, 
Bishop  of  Nismes,  dated  the  3d  of  June,  1707,  and  another 
note  purporting  to  be  in  the  handwriting  of  Fenelon,  Arch- 
bishop of  Cambray,  of  the  date  of  the  10th  of  October,  1707. 
It  was  proved  that  Flechier  died  in  1711,  and  the  letters-patent 
for  the  installation  of  his  successor  in  the  bishopric  of  Nismes 
were  produced,  bearing  date   the  2')th  of   February  in   that 


230 


VERIFICATION  OF  DATES  AND  TIME. 


year ;  that  Fenelon  died  on  the  7th  of  January,  1715  ;  and 
that  De  I'lsle  was  not  appointed  geographer  to  the  king  until 
the  24:th  of  August,  1718.  In  all  of  De  I'lsle's  editions  of  his 
map  the  original  date  of  1703  was  preserved  as  the  commence- 
ment of  his  copyright,  but  on  any  change  of  residence  or  of 
designation,  he  made  a  corresponding  change  in  the  original 
copper-plate  from  which  all  successive  issues  of  the  map  were 
engraved,  and  it  was  proved  by  a  scientific  witness  that  the 
title  of  De  I'Isle  had  been  actually  altered  on  the  copper-plate 
of  the  map  since  1718.  Of  course  a  map  issued  prior  to  1718 
could  not  refer  to  his  appointment  of  geographer  to  the  king, 
and  any  attestation  of  the  date  of  1707  to  a  map  containing 
a  recognition  of  that  appointment  must  of  necessity  be  spurious. 
The  forger  of  the  map  must  have  been  misled  by  the  date  of 
1703  upon  it,  and  ignorant  of  the  fact  that  De  I'Isle  was  not 
appointed  geographer  to  the  king  until  1718;  so  dilRcult  is 
it  to  preserve  consistency  in  an  attempt  to  impose  by  means  of 
forgery.  The  very  ink  with  which  some  of  the  pretended 
attestations  were  made  was  not  the  usual  ink  of  the  period,  but 
a  modern  composition  made  to  imitate  ink  turned  old.  There 
were  other  strong  grounds  for  impugning  the  genuineness  of 
these  various  documents,  which  the  jury  unanimously  found  to 
be  forged.^ 

It  was  observed  by  Lord  C  B.  Macdonald,  that  there  is 
nothing  we  are  so  little  in  the  habit  of,  as  measuring  with  any 
degree  of  correctness  small  portions  of  time  ;  and  that  if  any 
one  were  to  examine,  with  a  watch  which  marks  the  seconds, 
how  much  longer  a  space  of  time  a  few  seconds  or  a  few 
minutes  really  are  than  people  in  general  conceive  them  to  be, 
they  would  be  surprised  ;  but  that  in  general,  when  we  speak 
of  a  minute,  or  an  instant,  we  can  hardly  be  understood  to 
mean  more  than  that  it  was  a  very  short  space  of  time.^ 
Nevertheless  it  is  sometimes  of  the  highest  importance  ac- 
curately to  fix  the  exact  time  of  the  occurrence  of  an  event, 
and  a  difference  of  a  few  minutes  even  may  be  of  vital  moment. 
This  frequently  happens  where  the  defence  is  that  of  an  alibi. 
On  a  charge  of  murder,  where  the  defence  was  of  that  nature, 

*  See  the  Reports  of  the  Trial  by  Archibald  Swinton,  Esq.,  and  Willipjn 
TurnbuU,  Esq. ;  Remarks  on  the  Trial,  by  an  English  Lawyer  ;  1  Towns- 
end's  St.  Tr.  403  ;  and  Dickson's  L.  of  Ev.,  ut  supra,  173. 

•  Rex  V.  Patch,  Gurney's  Report,  171. 


VERIFICATION  OF  DATES  AND  TIME.  231 

and  it  was  essential  to  fix  the  precise  times  at  which  the  prisoner 
had  been  seen  by  the  several  witnesses  soon  after  the  fatal 
event  which  was  the  subject  of  investigation,  the  object  was 
satisfactorily  effected  by  a  comparison  made  by  an  intelligent 
witness  on  the  same  day,  of  the  various  time-pieces  referred  to 
by  the  several  witnesses,  with  a  public  clock  ;  thus  affording 
the  means  of  reducing  the  times  as  spoken  to  by  them  to  a 
common  standard.^ 

In  an  indictment  for  rape  witness  testified  that  she  met 
the  defendant  at  a  certain  point  on  a  certain  road  between  the 
hours  of  eight  and  ten  in  the  morning  as  she  supposed.  An- 
other Avitness  testified  that  he  was  at  work  near  the  place 
mentioned  from  seven  in  the  morning  till  noon,  and  that  he 
saw  neither  of  the  parties.  Either  the  latter  witness  was  mis- 
taken as  to  his  being  so  near  the  road  that  he  must  necessarily 
have  observed  any  one  passing,  or  the  former  was  mistaken  in 
her  conjecture  as  to  the  time,  which  was  quite  possible,  since 
she  had  no  watch.^ 

Post-office  marks  are  often  of  great  importance  in  fixing 
disputed  dates;  but  it  is  remarkable  that  in  two  cases  in 
England  involving  charges  of  murder,  the  defective  manner  in 
which  they  were  impressed  rendered  them  useless,  and  became 
the  subject  of  judicial  animadversion,^  which  led  to  improve^ 
ments  calculated  to  render  the  recurrence  of  any  such  matter 
of  complaint  most  unlikely. 

Scientific  testimony  grounded  on  the  state  of  wounds  and 
injuries  to  the  human  body,  or  on  its  condition  of  decay,  is 
frequently  employed  indirectly  in  the  solution  of  questions  of 
time ;  but  cases  of  this  nature  belong  to  the  department  of 
medical  jurisprudence. 

1  Rex  V.  Thornton,  infra.  ^  Johnson  v.  State,  14  Ga.  55. 

'  By  L.  C.  J.  Campbell  in  Reg.  v.  Palmer,  infra ;  and  by  the  L.  Justice 
Clerk  in  Reg.  v,  Madeleine  Smith,  injra. 


PART  III. 

EXCULPATORY  PRESUMPTIONS  AND  CIRCUM- 
STANTIAL  EVIDENCE. 


The  common  law  recognizes  several  presumptions,  ^'?<r  is  et 
de  jure,  which  create  entire  or  partial  exemption  from  criminal 
responsibility ;  as,  that  infants  under  the  age  of  seven  years 
cannot  be  guilty  of  crime,  that  infants  above  that  age  and 
under  fourteen  years  shall  be  prima  facie  adjudged  doli 
incapax,  and  that,  as  to  certain  offences  connected  with  phys- 
ical development,  minors  under  the  age  of  fourteen  years 
shall  be  conclusively  presumed  to  be  incapable  of  committing 
them,  and  that  no  evidence  shall  be  admitted  to  the  contrary. 
Such  also  is  the  presumption  that  offences  committed  by  the 
wife  in  the  presence  of  her  husband  shall,  with  certain  excep- 
tions, be  considered  to  have  been  committed  by  his  coercion. 
But  the  presumptions  which  concern  the  subject  of  this  Avork 
are  of  a  different  kind,  consisting  mainly  of  maxims  drawn 
from  well-digested  experience,  and  grounded  upon  considera- 
tions of  natural  equity,  for  the  candid  construction  of  the 
actions  and  motives  of  our  fellow-men,  and  which  are  in  truth 
but  particular  forms  of  strict  justice.^  An  enumeration  of 
some  of  the  principal  of  these  presumptions  will  form  the 
subject  of  this  chapter. 

1  "Presumptions,"  says  an  eminent  author,  "accept  the  ordinary  and 
probable  as  true  until  it  is  shown  not  to  be  true.  Thus,  we  presume  a  man 
innocent  of  a  crime,  and  that  a  man  and  woman  living  together  as  husband 
and  wife,  and  recognizing  each  other  and  being  recognized  by  the  com- 
munity as  such,  are  lawfully  married,  and  these  presumptions  are  made 
because  in  the  great  majority  of  cases  the  fact  accords  with  the  presump- 
tion." Cooley's  Elements  of  Torts,  280. 
232 


CHAPTER  I. 

THE  PRESUMPTION  OF  INNOCENCE. 

In  the  investigation  and  estimate  of  criminatory  evidence 
there  is  an  antecedent  prima  facie  presumption  in  favor  of 
the  innocence  of  the  party  accused,  grounded  in  reason  and 
justice,  and  recognized  in  the  judicial  practice  of  all  civilized 
nations  ;  which  presumption  must  prevail  until  it  be  destroyed 
by  such  an  overpowering  amount  of  legal  evidence  of  guilt  as 
is  calculated  to  produce  the  opposite  belief.^  Any  evidence, 
however  little,  if  it  be  such  that  a  reasonable  man  might  fain  be 
convinced  by  it,  is  sufficient  for  the  purpose  .^  But  the 
establishment  of  ^>  prima  facie  case  only  does  not  take  away 
the  presumption  of  the  defendant's  innocence,  nor  shift  the 
burden  of  proof.^  On  the  trial  of  an  indictment  the  jury 
were  instructed  that  when  the  government  have  made  out  a 
prima  facie  case,  it  is  incumbent  on  the  defendant  to  restore 
himself  to  that  presumption  of  innocence  in  which  he  was  at 
the  commencement  of  the  trial.  It  was  held  that  this  was 
erroneous,  and  that  the  jury  should  have  been  instructed  that 
the  burden  of  proof  was  upon  the  Commonwealth  to  prove  the 
guilt  of  the  defendant ;  and  that  he  was  to  be  presumed  in- 
nocent unless  the  whole  evidence  in  the  case  satisfied  them 
that  he  was  guilty.*  Some  remarks  of  Chief  Justice  Rice  of 
Alabama  are  very  appropriate  here.  "  In  a  civil  case,"  said  that 
learned  Judge,  "  the  plaintiff  is  not  required  to  prove,  beyond 
all  reasonable  doubt,  the  fact  on  which  he  relies  for  recovery  ; 
and  therefore  when  he  establishes  a  prima  facie  case,  the 
burden  of  proof  is  thereby  shifted,  and  \hQ  prima  facie  case 
so  established  entitles  him  to  recover  unless  it  is  destroyed  by 

^  See  the  language  of  Lord  Gilues  in  Rex  v.  M'Kinley,  33  St.  Tr.  506, 

2  1  Roscoe  Or.  Ev.  (8th  Am.  Ed.)  28. 

3  People  V.  Milgate,  5  Cal.  127 ;  Ogletree  u.  State,  28  Ala.  693  ;  State  v. 
Banks,  43  la.  595. 

*  Com.  V.  KimbaU,  24  Pick.  366. 

233 


234  THE  PRESUMPTION  OF  INNOCENCE. 

proof  from  the  other  party.  But  in  a  criminal  case  the  State 
is  required  to  prove  beyond  all  reasonable  doubt  the  facts  which 
constitute  the  offence.  The  establishment  therefore  of  a 
prima  facie  case  merely  does  not  take  aAvay  the  presumption 
of  innocence  from  the  defendant,  but  leaves  that  presumption 
to  operate,  in  connection  with,  or  in  aid  of,  any  proof  offered 
by  him  to  rebut  or  impair  the  prima  facie  case  thus  made  out 
by  the  State.^ 

It  must  be  admitted  that  in  the  aggregate,  the  number  of 
convictions  vastly  exceeds  that  of  acquittals,  and  that  the  proba- 
bility is  that,  in  a  given  number  of  cases,  far  the  greater  number 
of  the  parties  accused  are  guilty  ;  but  according  to  all  judicial 
statistics,  and  under  every  system,  a  considerable  proportion 
of  tho  persons  put  upon  trial  are  legally  innocent.  In  any 
particular  case,  therefore,  the  party  viay  not  be  guilty,  and  it  is 
impossible,  Avithout  a  violation  of  every  principle  of  justice,  to  act 
upon  the  contrary  presumption  of  a  superior  probability  of  guilt. 
It  is,  therefore,  a  settled  and  inviolable  principle,  that  anterior 
to  contrary  proof,  the  accused  shall  be  considered  as  legally 
innocent,  and  that  his  case  shall  receive  the  same  dispassionate 
and  impartial  consideration  as  if  he  were  reaUy  so.  The 
presumption  of  innocence,  though  not  strictly  evidence  in 
favor  of  the  accused,  yet  has,  to  the  extent  it  goes,  the  effect 
of  evidence — sufficiently  so  in  a  doubtful  case  to  turn  the  scale 
in  his  favor,  and  produce  his  acquittal.^ 

If  a  house  is  consumed  by  fire,  the  presumption  is,  not  that 
it  was  intentionally  set  on  fire,  but  that  the  fire  was  the  result 
of  accident  or  of  some  providential  cause.^ 

There  is  a  general  presumption  against  immoral  conduct  of 
every  description.  Thus,  legitimacy  is  always  presumed  ;  *  and 
cohabitation  is  generally  presumptive  proof  of  marriage.^ 
There  is  always  a  presumption  in  favor  of  the  truth  of  testi- 
mony ;  ^  and  it  will  not  be  presumed  that  a  trespass  or  other 
wrong  has  been  committed.'^ 

Where  a  woman  married  again  within  the  space  of  twelve 

1  Ogletree  v.  State,  28  Ala.  693. 

3  Hampton  v.  State,  1  Tex.  Crim.  App.  652. 

3  Phillips  V.  State,  29  Ga.  105. 

*  Banbury  Peerage  Case,  1  Sim.  &  S.  153. 

5  Doe  d.  Fleming  v.  Fleming,  4  Bing.  266,  13  E.  C.  L.  The  rule  is  other- 
wise, however,  in  cases  of  bigamy.     1  Roscoe  Cr.  Ev.  (8th  Am.  Ed.)  29. 

6  Best,  Ev.  419.  ^  Best,  Ev.  416  ;  1  Roscoe  Cr.  Ev.  (8th  Am.  Ed.)  29. 


THE  PRESUMPTION  OF  INNOCENCE.  235 

months  after  her  husband  had  left  the  country,  the  presump- 
tion of  innocence  was  held  to  preponderate  over  the  usual 
presumption  of  the  continuance  of  life.^  But  this  case  was 
much  commented  on  in  a  later  case,^  where  it  was  held  that  a 
man  having  some  years  before  married  one  woman,  who  was 
shown  to  have  been  alive  on  the  17th  March,  1831,  and  another 
Avoman  on  the  11th  April  of  that  year,  the  sessions  were 
justified  in  presuming  the  first  wife  to  have  been  alive  and  the 
second  marriage  void.  Lord  Denman,  C.  J.,  said  that  there 
was  no  rigid  presumption  of  law  without  reference  to  the 
accompanying  circumstances,  and  the  presumption  of  innocence 
could  not  prevail  against  proof  that  the  first  wife  was  alive 
shortly  before.  It  is  to  be  observed  that  the  two  cases  differed 
so  much  as  fully  to  justify  the  court  of  sessions  in  coming  to 
opposite  conclusions  upon  them. 

Upon  the  trial  of  an  action  for  money  had  and  received,^  in 
order  to  try  the  plaintiff's  right  to  a  donative,  it  was  held 
unnecessary  for  him  to  prove  at  the  trial,  although  called  upon 
to  do  so,  that  he  had  subscribed  the  articles  of  the  church,  in 
the  presence  of  the  ordinary,  or  publicly  read  the  same,  or  that 
he  had  subscribed  the  declaration  of  uniformity  contained  in 
the  statute.*  And  where  the  plaintiff  sued  for  titles,  the  de- 
fendant pleaded  that  the  plaintiff  had  not  read  the  articles 
according  to  the  statute,  and  the  court  constrained  the  defend- 
ant to  prove  the  negative ;  and  Coke  said  that  if  such  a  matter 
should  come  before  him  in  evidence,  he  would  presume,  until 
the  contrary  should  be  proved,  that  the  plaintiff  had  read  the 
articles.^  Upon  an  information  for  refusing  to  deliver  up  the 
rolls  of  the  Auditor  of  the  Exchequer,  the  Court  of  Exchequer 
put  plaintiff  upon  proof  of  the  negative.^  In  an  action  for  put- 
ting combustible  matter  on  board  the  plaintiff's  ship  without 
giving  notice  of  its  contents,  when  the  ship  was  destroyed,  it  was 
held  that  the  plaintiff  w^as  bound  to  prove  the  want  of  notice.  ^ 

1  Rex  V.  Twyning,  2  B.  &  Aid.  386. 

2  Rex  V.  Harborne,  2  Ad.  &  E.  (29  E.  C.  L.)  541. 

8  Powell  V.  Milburn,  3  Wils.  355.  *  18  and  14  Chas.  II.  c.  4. 

6  Monke  v.  Butler,  1  Roll.  R.  83.  See  Stark  Ev.  (10th  Am.  Ed.)  755,  n. 
"  This  presumption  of  innocence  is  so  strong  that  even  where  the  guilt  can 
be  established  only  by  proving  a  negative,  that  negative  must  in  most  cases 
be  proved  by  the  party  alleging  the  guilt."     1  Greenl.  Ev.  §  35. 

6  Lord  Halifax's  Case,  B.  N.  P.  298. 

'  Williams  v.  East  India  Co.,  3  East,  192. 


236 


THE  PRESUMPTION  OF  INNOCENCE. 


Upon  an  information  in  the  nature  of  quo  warranto^  when 
the  objection  was  that  the  defendant  had  not  taken  the  sacra- 
ment within  a  year,  the  court  held  that  the  presumption  was 
that  he  had  conformed  to  the  law.^  When  a  marriage  de  facto 
is  proved,  the  presumption  is  that  the  marriage  was  conducted 
according  to  law,  and  the  burden  of  proof  is  on  the  party 
denying  it.^  "When  the  plaintiff  in  ejectment  claims  the  right. 
to  enter  upon  lands  for  the  breach  of  a  condition  subsequent, 
the  burden  is  upon  him  to  prove  the  breach.^  The  averment 
of  neglect  of  official  duty  must  be  supported  by  some  proof  by 
the  party  making  it.* 

1  Rex  V.  Hawkins,  10  East,  211.  a  Raynham  v.  Canton,  3  Pick.  393. 

3  O'Brien  v.  Doe,  6  Ala.  787. 

*  Dobbs  V.  Justices,  17  Ga.  624.  But  in  such  a  case  very  little  evidence 
will  suffice  to  shift  the  burden  of  proof. 


CHAPTER  II. 

THE  CREDIBILITY  OF  TESTIMONY. 

Artificial  rules  for  determining  the  credibility  of  testimony 
should  generally  be  avoided.  Jurors  who  observe  the  witness 
while  he  is  testifying,  his  manner,  his  intelligence,  his  appear- 
ance, his  bias  or  the  absence  of  it,  and  many  other  nameless 
indicia,  are  as  a  rule  the  best  determiners  of  the  truth  or  falsity 
of  parol  testimony.^  And  it  would  be  foreign  to  the  subject 
of  this  work  to  discuss  the  considerations  which  affect  the 
credibility  of  evidence  in  general,  such  as  the  integrity,  disin- 
terestedness, and  ability  of  the  witnesses,^  the  consistency  of  their 
testimony,  its  conformity  with  experience,  and  its  agreement 
with  collateral  circumstances,  since  these  considerations  apply 
to  circumstantial  only  in  common  "svith  all  other  testimonial 
evidence.  It  has  been  profoundly  observed,  that  of  all  the 
various  sources  of  error,  one  of  the  most  copious  and  fatal  is 
an  unreflecting  faith  in  human  testimony  ;  ^  and  it  is  obvious 
that  all  reasoning  upon  the  relevancy  and  effect  of  circum- 
stantial evidence  presupposes  its  absolute  verity,  and  that  such 
evidence  necessarily  partakes  of  the  infirmities  incidental  to  all 
human  testimony ;  and  facts  apparently  indicative  of  the  most 
forcible  presumption  have  been  fabricated  and  supported  by 
false  testimony.  Every  consideration,  therefore,  which  detracts 
from  the  credibility  of  evidence  in  the  abstracts,  applies  a  for- 
tiori to  evidence  which  is  essentially  indirect  and  inferential. 
In  such  cases,  falsehood  in  the  minutest  particular  throws 
discredit  upon  every  part  of  a  complainant's  statement,  accord- 
ing to  the  well-known  maxin,  qui  rnendax  in  iino  mendax  in 
omnibus. 

1  Stone,  C.  J.,  in  Dick  v.  State,  87  Ala.  61. 

2  See,  on  these  points,  State  v.  Wisdom  (Mo.),  24  S.  W.  1047  ;  State  v. 
Miller,  9  Houst.  564  ;  Housh  v.  State  (Neb.),  61  N.  W.  571  ;  Reagan  v.  U. 
S.,  157  U.  S.  301  ;  Johnson  v.  U.  S.,  157  U.  S.  320. 

8  1  Stewart's  Collected  Works,  247. 

237 


238  THE  CREDIBILITY  OF  TESTIMONY. 

The  presumption  that  the  witness  will  declare  the  truth 
ceases  as  soon  as  it  manifestly  appears  that  he  is  capable  of 
perjury. 

But  this  applies  only  where  it  appears  that  the  witness  has 
wilfully  and  intentionally  testified  falsely.  Instructions  which 
omit  this  element  are  incorrect.^  Hence,  since  facts  can  never 
be  mutually  inconsistent,^  circumstantial  evidence  frequently 
affords  the  means  of  evincing  the  falsehood  of  direct  and  posi- 
tive affirmative  testimony,  and  even  of  disproving  the  existence 
of  the  corjnis  delicti  itself,  by  manifesting  the  incompatibility 
of  that  testimony  with  surrounding  and  concomitant  circum- 
stances, of  the  reality  of  which  there  is  no  doubt.^  The  testi- 
mony of  a  false  witness  must  either  be  sparing  in  circumstances, 
and  therefore  of  a  nature  obviously  suspicious,  or  be  liable  to  de- 
tection from  comparing  the  invented  circumstances  with  each 
other  and  with  those  which  are  known  to  be  true.  The  jury  are 
not  bound  to  accept  as  true  the  testimony  of  a  witness  which 
there  is  no  direct  testimony  to  contradict  when  it  contains 
inherent  imperfections.* 

Circumstantiality  of  detail  is  usually  a  test  of  sincerity, 
provided  the  circumstances  be  of  such  a  nature  as  to  be  capable 
of  contradiction  if  they  be  false.  And  if  a  witness  be  copious 
in  his  detail  of  circumstances  which  are  incapable  of  contradic- 
tion, but  sparing  of  those  which  are  of  an  opposite  kind,  his 
testimony  must  necessarily  be  regarded  with  a  degree  of  sus- 
picion. 

Nor,  on  the  other  hand,  must  it  be  forgotten,  as  has  been 
well  remarked,  that  "  the  usual  character  of  human  testimony 
is  substantial  truth  under  circumstantial  variety."  "  It  so 
rarely  happens,"  says  Starkie,  "that  witnesses  of  the  same 
transaction  perfectly  and  entirely  agree  in  all  points  connected 
with  it,  that  an  entire  and  complete  coincidence  in  every  par- 
ticular, so  far  from  strengthening  their  credit,  not  unfrequently 
engenders  a  suspicion  of  practice  and  concert."  ^ 

1  Stoppert  V.  Nierle  (Neb.),  63  N.  W.  382.  See  further  on  this  matter, 
Paul  V.  State  (Ala.),  14. So.  634  ;  Alton  Lime  &  C.  Co.  v.  Calvey,  47  lU. 
App.  343. 

2  Locke  on  Human  Understanding,  b.  iv.  c.  SO,  §  8. 

*  Best  on  Presumptions,  54.  *  Lang  v.  Ferrant,  55  Minn.  415. 

6  See  Starkie  on  Ev.  (10th  Am.  Ed.)  831.  "I  know  not,"  says  Dr.  Paley, 
"  a  more  rash  or  unphilosophical  conduct  of  the  understanding  than  to  re- 
ject the  substance  of  a  story  by  reason  of  some  diversity  in  the  circum- 


THE  CREDIBILITY  OF  TESTIMONY.  239 

Sir  Matthew  Hale  mentions  a  very  remarkable  case,  where 
an  elderly  man  was  charged  with  violating  a  young  girl  of 
fourteen  years  of  age,  but  it  was  proved  beyond  all  doubt  that 
a  physical  infirmity  rendered  the  perpetration  of  such  a  crime 
utterly  impossible.^  The  prosecutrix  of  an  indictment  against 
a  man  for  administering  arsenic  to  her,  to  procure  abortion, 
deposed  that  he  had  sent  her  a  present  of  tarts,  of  which  she 
partook,  and  that  shortly  afterwards  she  was  seized  with 
symptoms  of  poisoning.  Amongst  other  inconsistencies,  she 
stated  that  she  had  felt  a  coppery  taste  in  the  act  of  eating, 
which  it  was  proved  that  arsenic  does  not  possess ;  and  from 
the  quantity  of  arsenic  in  the  tarts  which  remained  untouched, 
she  could  not  have  taken  above  two  grains,  while  after  repeated 
vomitings,  the  alleged  matter  subsquently  preserved  contained 

stances  with  which  it  is  related.  The  usual  character  of  human  testimony- 
is  substantial  truth  under  circumstantial  variety.  This  is  what  the  daily 
experience  of  courts  of  justice  teaches.  When  accounts  of  a  transaction 
come  from  the  mouths  of  different  witnesses,  it  is  seldom  that  it  is  not  pos- 
sible to  pick  out  apparent  or  real  inconsistencies  between  them.  These  in- 
consistencies are  studiously  displayed  by  an  advei^se  pleader,  but  often- 
times with  little  impression  upon  the  minds  of  the  judges.  On  the  con- 
trary, a  close  and  minute  agreement  induces  the  suspicion  of  confeder- 
acy and  fraud.  When  written  histories  touch  upon  the  same  scenes  of 
action,  the  comparison  almost  always  affords  ground  for  a  like  reflection. 
Numerous  and  sometimes  important  variations  present  themselves ;  not 
seldom,  also,  absolute  and  final  contradictions  ;  yet  neither  the  one  nor 
the  other  are  deemed  sufficient  to  shake  tlie  credibilit)'  of  the  main  fact. 
The  embassy  of  the  Jews  to  deprecate  the  execution  of  Claudius'  order  to 
place  his  statue  in  their  temple,  Philo  places  in  harvest,  Josephus  in  seed- 
time ;  both  contemporary  wi-iters.  No  reader  is  led  by  their  inconsistency 
to  doubt  whether  such  an  embassy  was  sent  or  whether  such  an  order  was 
given.  Our  own  history  supplies  examples  of  the  same  kind  ;  in  the  account 
of  the  Marquis  of  Argyle's  death  in  the  reign  of  Charles  tlie  Second,  we 
have  a  very  remarkable  contradiction.  Lord  Clarendon  relates  that  he 
was  condemned  to  be  hanged,  which  was  performed  on  the  same  day  ;  on 
the  contrary,  Burnet,  Woodrow,  Heath,  and  Eckard  concur  in  stating  that 
he  was  beheaded,  and  that  he  was  condemned  upon  the  Saturday,  and 
executed  upon  the  Monday.  Was  any  reader  of  English  history  ever  sceptic 
enough  to  raise  a  doubt  whether  he  was  executed  or  not  ?  "  To  take  an 
illustration  from  our  own  times,  in  the  Gettysburg  address  of  President 
Lincoln.  That  there  was  such  an  address,  and  the  circumstances  of  its 
delivery,  are  matters  of  common  knowledge.  Yet  those  who  were  near 
the  person  of  Mr.  Lincoln  differ  in  their  accounts  of  the  time  and  manner 
of  preparation  of  the  address.  No  one  has  yet  been  found  so  foolhardy  as 
to  declare  the  battle  of  Waterloo  a  myth  of  the  historians.  Yet  the  narra- 
tives differ  in  many  of  the  details  of  that  tremendous  struggle. 
1  1  P.  C.  c.  58. 


240 


THE  CREDIBILITY  OF  TESTIMONY. 


nearly  fifteen  grains,  though  the  matter  first  vomited  contained 
only  one  grain.  The  prisoner  was  acquitted,  and  the  prosecu- 
trix afterwards  confessed  that  she  had  preferred  the  charge 
from  motives  of  jealousy .^ 

Where  the  chief  witness  on  a  trial  for  murder  was  an  accom- 
plice, it  was  held  proper  to  show  that  the  witness  had  made 
threats  against  the  deceased  for  talking  about  his  sister,  as  this 
would  tend  to  prove  that  his  conduct  in  killing  deceased  was 
dictated  by  his  own  personal  malice,  independently  of  the  in- 
stigation of  the  defendant,  and  to  this  extent  would  suggest  a 
possible  hypothesis  inconsistent  with  his  own  statement.^  In 
an  old  case  it  was  shown  that  the  witness  had  threatened  to  be 
revenged  on  his  master,  the  defendant,  by  sending  him  to  jail.^ 
This  has  been  followed  in  a  very  recent  case  where  the  defend- 
ant was  on  trial  for  forging  entries  in  a  weigh-sheet  at  a  colliery 
with  intent  to  defraud.  The  prosecution  depended  for  con- 
viction on  the  testimony  of  a  witness  who  stated  that  while 
concealed  in  the  roof  of  the  office,  he  saw  the  defendant  make 
the  false  entries.  It  was  allowed  to  be  shown  that  the  witness 
had  two  years  previously  threatened  to  be  revenged  on  the 
prisoner,  saying :  "  It  is  in  my  power  to  do  him  a  good  one, 
and  when  I  do  him  it  will  be  a  good  one."  * 

1  Reg.  V.  Whalley,  York  Spring  Assizes,  1829  ;  Christison  on  Poisons,  95. 

■^  Matler  v.  State,  67  Ala.  55  ;  42  Am.  Rep.  95. 

»  Rex  V.  Yewin,  2  Camp.  638,  n.  *  Reg.  v.  Shaw,  16  Cox  C.  C.  583. 


CHAPTER   III. 

CONDUCT  OF  THE   COMPLAINING  PARTY  AS    GIYINQ    RISE    TO 
THE   PRESUMPTION  OF    INNOCENCE. 

Irrespectively  of  and  distinct  from  any  positive  discrepancy 
in  the  account  given  by  a  complainant  party,  there  is  a  con- 
sistency of  deportment  and  conduct  grounded  upon  the  inva- 
riable laws  of  our  moral  nature,  which  is  essentially  charac- 
teristic of  truth  and  honesty,  and  the  absence  of  which  neces- 
sarily detracts  from  the  credit  of  such  evidence,  and  therefore 
tends  to  create  a  counter-presumption.  We  reasonably  expect 
to  discover  in  the  demeanor  of  a  party  who  has  just  reason  to 
complain  of  personal  injury  or  violated  honor  or  right,  prompt 
and  unequivocal  indications  of  that  sense  of  wrong  and  inse- 
curity, which,  as  the  invariable  consequence,  is  naturally  and 
involuntarily  generated  in  every  human  mind. 

In  trial  for  rape  the  conduct  of  the  prosecutrix  immediately 
after  the  transaction  is  properly  the  subject  of  scrutin3\^  That 
she  made  complaint  immediately  after  the  alleged  assault  is  a 
circumstance  corroborative  of  her  statement  at  the  trial  that 
such  an  assault  was  made.^  In  determining-  the  credit  to  be 
given  to  her  testimony  various  circumstances  must  be  con- 
sidered :  e.g.^  her  character,  whether  she  immediately  told  of 
the  offence  if  she  had  opportunity  to  do  so,  whether  she  might 
have  been  heard  at  the  time  of  the  outrage,  and  yet  made  no 
outcry,  whether  she  be  supported  by  other  evidence,  whether 
the  accused  fled.^ 

An  outcry  and  resistance  are  important  elements  of  evi- 
dence and  a  want  of  these  circumstances  where  they  may  reason- 
ably be  expected  go  far  to  disprove  the  charge  of  rape.^  A  con- 
cealment of  the  injury  where  there  is  an  opportunity  for  early 
disclosure,  may  lead  to  a  like  inference.^ 

1  People  V.  Flynn,  95  Mich.  276. 

2  Bean  v.  People,  124  111.  576.  «  Lynn  v.  Com.,  13  S.  W.  74. 

*  State  V.  Cunningham,  100  Mo.  535.         ^  state  v.  Witten,  13  S.  W.  871. 

241 


242  CONDUCT  OF  THE  COMPLAINING  PARTY 

Sir  Matthew  Hale,  in  reference  to  this  crime,  says :  "  If  the 
party  concealed  the  injury  for  any  considerable  time  after  she 
had  opportunity  to  complain ;  if  the  place  where  the  fact  was 
supposed  to  be  committed  were  near  to  inhabitants,  or  common 
recourse  or  passage  of  passengers,  and  she  made  no  outcry 
when  the  fact  was  supposed  to  be  done,  when  and  where  it  is 
probable  that  she  might  be  heard  by  others ;  these  and  the  like 
circumstances  carry  a  strong  presumption  that  her  testimony 
is  false  or  feigned."  ^ 

These  cautionary  considerations  are  applicable  with  more  or 
less  of  force  to  accusations  of  every  description  ;  but  they  are 
more  especially  weighty  and  pertinent  in  reference  to  the  par- 
ticular crime  referred  to,  of  which  the  learned  author  from 
whom  we  have  just  quoted  has  said,  that  "  it  is  an  accusation 
easily  to  be  made,  and  hardly  to  be  proved,  and  harder  to  be 
defended  by  the  party  accused,  though  never  so  innocent."  ^ 
Such  cases,  he  further  observes,  are  not  uncommon,  and  he  has 
related  the  particulars  of  two  cases,  where,  though  the  charges 
were  groundless,  the  parties  with  difficulty  escaped.  "  I  only 
mentioned  these  instances,"  said  that  upright  judge,  "  that  we 
may  be  the  more  cautious  upon  trials  of  offences  of  this  nature, 
wherein  the  court  and  jury  may  with  so  much  ease  be  imposed 
upon,  without  great  care  and  vigilance,  the  heinousness  of  the 
offence  many  times  transporting  the  judge  and  the  jury  with 
so  much  indignation,  that  they  are  over-hastily  carried  to  the 
conviction  of  the  persons  accused  thereof  by  the  confident 
testimony  sometimes  of  malicious  and  false  witnesses."  ^ 

On  a  prosecution  for  carnally  knowing  a  child,  the  defend- 
ant was  permitted  to  show  that  at  the  time  the  offence  was 
alleged  to  have  been  committed  the  physical  system  of  the 
accused  was  greatly  weakened  and  debilitated  by  drink,  as 
tending  to  show  that  he  was  not  capable  of  committing  it.* 

False  charges  of  this  kind  have  unhappily  been  too  common 
and  too  successful  in  all  ages.  The  social  consequences  of 
female  dishonor  are  so  deadly,  and  the  inducements  to  false- 
hood and  revenge  so  peculiar  and  so  powerful,  that  there  is  no 
class  of  cases  in  which  it  is  more  important  to  obtain  an  exact 
knowledge  of  the  motives  and  character  of  the  complainant. 
For  these  reasons  great  latitude  of  cross-examination  is  per- 

1 1  Hale's  P.  C.  c.  58.  2  1  Hale's  P.  C.  c.  58. 

8  Ibid.  *  Nugent  v.  State,  18  Ala.  521. 


AS  GIVING  RISE  TO  THE  PRESUMPTION  OF  INNOCENCE.  243 

mitted  in  cases  of  this  kind.  The  prosecutrix  may  be  tiross- 
examined  to  prove  her  unchaste.^  She  may  be  asked  whether 
she  did  not  have  sexual  intercourse  with  a  designated  person 
at  a  specified  time  and  place.^  In  New  York  she  Will  be  com- 
pelled to  answer,  and  if  she  answers  in  the  negative  she  may 
be  contradicted.^  Evidence  that  the  woman  charged  to  have 
been  injured  is  in  fact  a  common  prostitute,  or  evidence  of 
reputation  that  she  is  a  woman  of  ill-fame,  may  be  submitted 
to  the  jury  to  impeach  her  credibility  and  to  disprove  her 
statement  that  the  attempt  was  forcible  and  against  her  con- 
sent.* 

It  is  material  to  show  that  the  prosecutrix  has  previously 
sustained  criminal  relations  with  the  prisoner  ;  ^  otherwise,  par- 
ticular instances  of  her  unchaste  conduct  may  not  be  shown.^ 

Nor  is  the  danger  of  false  accusation  confined  to  the  partic- 
ular class  of  offences  which  has  been  specially  adverted  to. 
Inducements  to  prefer  false  charges  may  operate  with  greater 
or  lesser  force  with  regard  to  accusations  of  every  kind.  Two 
Avomen  were  capitally  convicted  of  robbing  a  young  girl  named 
Calming,  and  afterwards  confining  her  under  cuTUmstances  of 
great  cruelty  for  twenty-nine  days  without  sustenance,  except 
a  quartern  loaf  and  a  pitcher  of  water.  Public  odium  was 
intensely  excited  against  the  prisoners,  and  they  very  narrowly 
escaped  execution,  and  yet  it  was  clearly  ascertained  that  the 
charge  was  a  fabrication  in  order  to  conceal  the  prosecutrix's 
misconduct  during  the  period  of  her  absence  from  her  master's 
house.'^  Canning  was  afterwards  convicted  of  perjury,  and 
sentenced  to  be  transported ;  and  upon  her  trial  thirty-eight 
witnesses,  most  of  them  unconnected  wath  each  other,  spoke 
to  the  identity  of  one  of  her  unfortunate  victims,  and  proved 

1  State  V.  Murray,  63  N.  C.  31.  2  state  v.  Reed,  39  Vt.  417. 

^  Brennan  v.  People,  7  Hun,  171  ;  otherwise  in  England,  Rex  v.  Holmes, 
L.  R.  1  C.  C.  R.  334. 

*  Camp  V.  State,  3  Ga.  419 ;  State  v.  Forshner,  43  N.  H.  89 ;  State  v. 
White,  35  Mo.  500 ;  Pratt  v.  State,  19  Ohio  St.  217  ;  Reg.  v.  Clay,  5  Cox  C. 
C.  146  ;  Reg.  v.  Sissington,  1  Cox  C.  C.  48 ;  Reg.  v.  Dean,  6  Id.  23  ;  Reg.  v. 
Rooke,  6  Id.  196. 

&  Reg.  V.  Riley,  16  Cox  C.  C.  191.  See  also  People  v.  Benson,  6  Cal.  221 ; 
People  V.  Jackson,  3  Park.  C.  R.  391. 

6  State  V.  Forshner,  43  N.  H.  89 ;  State  v.  Knapp,  45  N.  H.  148 ;  Dorsey 
V.  State,  1  Tex.  Crim.  App.  33 ;  Woods  i\  People,  55  N.  Y.  515  ;  Com.  v. 
Regan,  105  Mass.  193. 

"  Rex  V.  Squires  &  WeUs,  19  St.  Tr.  275. 


244  CONDUCT  OF  THE  COMPLAINING  PARTY. 

a  circumstantial  alibi}  Eine  persons  were  convicted  on  a 
charge  of  conspiracy  to  carry  off  from  the  house  of  her  guard- 
ian a  young  lady  of  seventeen  years  of  age,  in  order  to  pro- 
cure her  clandestine  marriage  with  a  young  man  of  low  condi- 
tion for  whom  she  had  formed  an  attachment,  and  with  whom 
she  had  indulged  in  vulgar  familiarities.  She  gave  her  testi- 
mony in  a  manner  apparently  so  artless  and  ingenuous  that 
she  greatly  prepossessed  the  judge,  and  so  favorably  impressed 
the  jury  that  they  stopped  the  prosecutor's  counsel  when  about 
to  reply,  and  returned  a  verdict  of  guilty .^  Her  story  was 
nevertheless  discovered  to  be  a  fabrication,  for  the  purpose  of 
extricating  herself  from  the  shame  of  her  levity  and  miscon- 
duct, and  she,  as  well  as  a  witness  who  had  corroborated  her 
story,  were  afterwards  convicted  of  perjury.^  Miscreants,  and 
among  them  even  the  inferior  ministers  of  the  law,  have  con- 
cocted and  procured  the  commission  of  robbery  and  other 
crimes  for  the  purpose  of  obtaining  the  pecuniary  rewards 
formerly  given  by  act  of  Parliament  for  the  apprehension  and 
conviction  of  offenders.* 

It  is  frequently,  therefore,  of  the  highest  importance  to  in- 
vestigate the  motives  of  the  complainant  party,  and  to  ascer- 
tain whether  they  are  such  as  may  have  led  to  the  institution 
of  a  false  charge.  The  just  course  of  inquiry  in  such  circum- 
stances was  thus  laid  down  by  Mr.  Justice  Coltman.  "■  The 
jury,"  he  said,  "  had  nothing  to  do  with  the  prosecutor's 
motives,  exce])t  so  far  as,  if  it  should  appear  that  there  was  any 
motive  for  the  prosecution,  of  an  unworthy  character,  made 
out,  it  would  then  be  their  duty  to  watch  such  a  case  much 
more  narrowly  than  one  in  which  no  such  motive  appeared. 
Even  in  that  case,  however,  if  the  evidence  satisfied  them  of 
the  truth  of  the  charge,  they  had  no  right  to  look  at  the 
motives  that  had  induced  the  prosecutor  to  prefer  it,  but  were 
bound  to  say  that  the  accused  person  was  guilty.^ 

1  Rex  V.  Canning,  19  St.  Tr.  667. 

2  Rex  V.  Bowclitch  and  othei's,  Dorchester  Summer  Ass.,  1818,  coram  Mr. 
Justice  Park,  Short-hand  Rep. 

3  Rex  V.  Whitby,  and  Rex  v.  Glenn,  K.  B.  Guildhall,  Oct.  1820. 

4  Rex  V.  M'Daniel  and  others,  Foster's  Rep.  121 ;  Rex  v.  Vaughan  and 
others.  Sessions  Papers,  1816  ;  Reg.  v.  Delahunt,  Dublin,  1842 ;  cited  in 
Best's  Princ. ,  ut  supra,  533. 

6  Reg.  V.  Coyle,  C.  C.  C,  Oct.  Sess.,  1851. 
9 


CHAPTER  IV. 

THE   CONDUCT  OF  THE   ACCUSED  AS  RAISING  A  PRESUMPTION 

OF   INNOCENCE. 

A  PRESUMPTION  of  innocence  may  be  created  by  the  language, 
conduct,  and  demeanor  of  the  party  charged  with  crime ;  and  it 
is  upon  this  principle  that  the  ingenuous  and  satisfactory  ex- 
planation of  circumstances  of  suspicion  always  operates  in 
favor  of  the  accused.  Mr.  Justice  Earle  said  he  thought  it  was 
extremely  important,  as  much  for  the  protection  of  innocence 
as  for  the  discovery  of  guilt,  that  the  accused  should  have  an 
opportunity  of  making  a  statement ;  ^  and  the  Lord  Justice 
Clerk,  in  a  Scotch  case,  said  that  the  declaration  of  a  prisoner, 
if  fairly  given,  and  founded  in  truth,  often  had  a  very  favor- 
able affect.2 

It  is  evident,  however,  that  this  kind  of  presumption  must 
be  attended  with  much  uncertainty,  and  in  its  application  re- 
quire the  exercise  of  great  circumspection.  A  prisoner  was  not 
allowed  to  prove  that  when  he  heard  of  the  murder  of  which 
he  was  accused  he  appeared  surprised,  the  court  saying  that  he 
could  no  more  make  his  appearance  or  conduct  evidence  than 
he  could  his  declarations  or  admissions.^  The  deportment  of 
innocence  may  be  simulated,  and  from  the  anomalies  of  human 
nature,  it  may  be  diiiicult  if  not  impracticable  in  some  cases  to 
determine  what  is  the  natural  and  suitable  conduct  to  be  ex- 
pected from  a  party  influenced  by  the  pressure  of  an  accumu- 
lation of  circumstances  at  once  threatening  and  fallacious.  It 
is  certain  that  innocent  persons  have  drawn  upon  themselves 
the  punishment  of  crime  by  conduct  apparently  consistent  only 
with  guilt,  but  which  has  erroneously  been  resorted  to  as  likely 
to  divert  or  repel  unjust  suspicion ;  of  which  an  instructive  case 

1  Reg.  V.  Baldwin,  81  L.  J.  M.  C.  130. 

2  Rex  V.  Wishart,  1  Syme's  Jud.  Rep.  App.  23. 

3  Campbell  v.  State,  23  Ala.  44. 

245 


246  THE  CONDUCT  OF  THE  ACCUSED 

is  mentioned  by  Sir  Edward  Coke.^  "  In  the  county  of  War- 
wick," says  he,  "  there  were  two  brethren ;  the  one  having 
issue  a  daughter,  and  being  seized  of  lands  in  fee,  devised  the 
government  of  his  daughter  and  his  lands  until  she  came  to 
her  age  of  sixteen  years,  to  his  brother,  and  died.  The  uncle 
brought  up  his  niece  very  well,  both  at  her  book  and  needle, 
etc.,  and  she  was  about  eight  or  nine  years  of  age ;  her  uncle 
for  some  offence  correcting  her,  she  Avas  heard  to  say,  '  Oh ! 
good  Uncle,  kill  me  not ! '  After  which  time  the  child,  after 
much  inquiry,  could  not  be  heard  of,  whereupon  the  uncle, 
being  suspected  of  the  murder  of  her,  the  rather  that  he  was 
her  next  heir,  was  upon  examination,  anno  8  Jac.  Regis,  com- 
mitted to  the  jail  for  suspicion  of  murder ;  and  was  admonished 
by  the  justices  of  assize  to  find  out  the  child,  and  thereupon 
bailed  until  the  next  assizes.  Against  which  time,  for  that  he 
could  not  find  her,  and  fearing  what  would  fall  out  against 
him,  he  took  another  child,  as  like  unto  her,  both  in  person  and 
years,  as  he  could  find,  and  apparelled  her  like  unto  the  true 
child,  and  brought  her  to  the  next  assizes  ;  but  upon  view  and 
examination  she  was  found  not  to  be  the  true  child ;  and  upon 
these  presumptions  he  was  indicted,  found  guilty,  had  judgment, 
and  was  hanged.  But  the  truth  of  the  case  was,  that  the  child, 
being  beaten  over-night,  the  next  morning,  when  she  should  go 
to  school,  ran  away  into  the  next  county  ;  and  being  well  edu- 
cated she  was  reared  and  entertained  of  a  stranger ;  and  when 
she  was  sixteen  years  old,  at  which  time  she  should  come  to 
her  land,  she  came  to  demand  it,  and  was  directly  proved  to  be 
the  true  child."  The  learned  author  adds,  "  We  have  reported 
this  case  for  a  double  caveat ;  first,  to  judges,  that  they  in 
cases  of  life  judge  not  too  hastily  upon  bare  presumption,  and 
secondly,  to  the  innocent  and  true  man,  that  he  never  seek  to 
excuse  himself  by  false  or  undue  means,  lest  thereby  he,  offend- 
ing God  (the  author  of  truth),  overthrow  himself  as  the  uncle 
did." 

From  the  foregoing  considerations  it  follows  that  our  judg- 
ments in  regard  to  the  conduct  of  parties  under  accusation  for 
crime  must  occasionally  be  modified  by  allowances  for  human 
weakness  and  inconsistency,  which  can  in  no  degree  be  ad- 
mitted as  qualifying  the  obligation  of  entire  truthfulness  and 

1  Third  Inst.  c.  104,  232. 


AS  RAISING  A  PRESUMPTION  OF  INNOCENCE.  247 

consistency  justly  exacted  from  those  who  voluntarily  become 
the  accusers  of  others. 

Since  falsehood,  concealment,  flight,  and  other  like  acts  are 
generally  regarded  as  indications  of  conscious  guilt,  it  naturally 
follows,  that  the  absence  of  these  marks  of  mental  emotion, 
and  still  more  a  voluntary  surrender  to  justice,  when  the  party 
had  the  opportunity  of  concealment  or  flight,^  must  be  con- 
sidered as  leading  to  the  opposite  presumption  ;  and  these  con- 
siderations are  frequently  urged  with  jvist  effect,  as  indicative 
of  innocence ;  but  the  force  of  the  latter  circumstance  may  be 
weakened  by  the  consideration  that  the  party  has  been  the  ob- 
ject of  diligent  pursuit,^  or,  as  said  by  Lord  Campbell,  though 
the  party  may  have  abstained  from  flight  from  a  sense  of  in- 
nocence, he  may  have  done  so  from  thinking  that,  from  the 
course  he  had  taken,  nothing  would  be  discovered  against  him.^ 
One  indicted  for  murder  set  up  that  he  had  done  the  shooting 
in  self-defence,  and  relied  on  the  fact  that  he  had  surrendered 
himself  as  indicating  the  truth  of  his  defence,  but  the  court 
said  that  the  prisoner,  knowing  the  shooting  had  been  wit- 
nessed, chose  rather  to  surrender  himself  than  to  flee  the  coun- 
try, thinking  that,  perhaps,  by  the  oaths  of  himself  and  his 
companions,  true  or  untrue,  he  could  establish  his  contention.* 

It  must  be  also  remembered  that  flight  and  other  similar  in- 
dications of  fear  may  be  referable,  not  to  the  precise  offence 
charged,  but  to  other  circumstances,  as  to  disordered  affairs,^ 
or  to  guilt  of  another  and  less  penal  character  than  that  in- 
volved in  the  particular  charge.^ 

1  Menocliius,  ut  supra,  lib.  v.  pr.  50. 

2  Rex  V.  Buish,  1  Syme's  Justiciary  Rep.  277. 

?  Reg.  V.  Palmer,  Short-hand  Report,  xd  supra,  310. 

*  Barnards  v.  State,  88  Tenn.  181.  ^  Rex  v.  Crossfield,  26  St.  Tr.  217. 

«  Rex  V.  Scofield,  31  St.  Tr.  1061.  And  see  the  language  of  Tindal,  C.  J., 
in  Rex  v.  Frost,  Gumey's  Rep.  766,  749  ;  and  of  the  Lord  Justice  Clerk 
Boyle,  in  Rex  v.  Hunter,  and  others,  Court  of  Justiciary,  1838,  Short-hand 
Report,  368. 


CHAPTER  V. 

THE  EFFECT  OF  THE  ABSENCE  OF  APPARENT  MOTIVE  TO 
COMMIT   THE   CRIME   CHARGED. 

Since  an  action  without  a  motive  would  be  an  effect  without 
a  cause,  a  presumption  is  consequently  created  in  favor  of 
innocence  from  the  absence  of  all  apparent  inducement  to  the 
commission  of  the  imputed  offence.^  In  a  case  depending 
mainly  on  circumstantial  evidence  it  was  said  that  the  want  of 
motive  was  an  important  consideration  bearing  upon  the  prob- 
ability in  regard  to  guilt.^  But  a  request  to  charge  that  the 
absence  of  motive  on  the  part  of  the  defendant  for  the  commis- 
sion of  the  crime  charged  might  be  considered  by  the  jury  as 
favorable  to  the  defendant  was  held  by  the  Supreme  Court  of 
Georgia  to  have  been  properly  refused.^  The  investigation  of 
human  motives  is  often  a  matter  of  great  difficulty,  from  their 
latency  or  remoteness ;  and  experience  shows  that  aggravated 
crimes  are  sometimes  committed  from  very  slight  causes,  and 
occasionally  even  without  any  apparent  or  discoverable  motive. 
It  is  impossible  to  see  the  operations  of  the  human  mind.  The 
character,  instincts,  and  intents  of  persons  differ  so  that  what 
might  be  an  adequate  motive  for  one  for  a  certain  act  will  not 
be  for  another.*  This  particular  presumption  would,  therefore, 
seem  to  be  applicable  only  to  cases  where  the  guilt  of  the  in- 
dividual is  involved  in  doubt ;  and  the  consideration  for  the  jury 
in  general  is  rather  whether  upon  the  other  parts  of  the  evi- 
dence the  party  accused  has  committed  the  crime,  than  whether 
he  had  any  adequate  motive.^ 

And  while  absence  of  motive  for  the  crime  may  be  considered 

1  This  was  a  point  strenuously  insisted  on  by  the  defence  in  the  late 
famous  Durant  case.  See  article  on  the  Durant  case  by  Prof.  Jno.  H.  Wig- 
more,  Am.  L.  Rev.  vol.  xxx.  No.  1,  p.  29. 

2  People  V.  Paolick,  7  N.  Y.  Cr.  R.  30.  ^  Moore  v.  State,  64  Ga.  449. 
*  See  remarks  of  Platt,  J.,  in  People  v.  Rubensteine,  N.  Y.  Oyer  and 

Term.     See  Rice  Cr.  Ev.  §  344.  ' 
6  See  Mr.  Justice  Abbott's  charge  in  Rex  v,  Donnall.  Rep.,  ut  siipraj  130. 

248 


EFFECT  OF  THE  ABSENCE  OF  APPARENT  MOTIVE.        249 

where  giiilt  is  doubtful,  it  is  immaterial  where  the  proof  of 
guilt  is  satisfactory  to  the  jury.^  In  a  recent  case^  a  de- 
fendant party's  motives,  even  where  they  are  unquestion- 
ably of  a  criminal  character,  may  nevertheless  be  susceptible 
of  different  interpretations,  and  indicative  of  very  different 
degrees  of  moral  and  legal  turpitude.  Concealment  of  the  death 
of  an  illegitimate  child  and  the  clandestine  disposal  of  its  body, 
for  instance,  may  be  accounted  for,  either  b}^  a  purpose  to  sup- 
press evidence  of  a  murder,  or  merely  by  the  desire  of  preserv- 
ing the  reputation  of  female  chastity. 

The  fact  that  one  accused  of  homicide  knows  where  the  body 
of  the  murdered  person  is  concealed,  while  it  may  demonstrate 
the  fact  that  he  was  cognizant  of  the  murder,  does  not  prove 
that  he  committed  the  deed,  or  even  that  he  was  an  accomplice, 
but  is  only  circumstantial  evidence  from  which  guilt  may  be 
inferred,  and  does  not  reasonably  exclude  every  other  hypoth- 
esis, and  is  not  sufficient  to  convict.^ 

Where  a  woman  was  indicted  jointly  with  her  husband  for 
receiving  stolen  propert}^,  knowing  it  to  have  been  stolen,  and 
it  appeared  that  she  had  dealt  with  it  and  ultimately  destroyed 
it,  it  was  held  to  be  a  question  for  the  jury  whether  she  had  so 
received  and  dealt  with  it  to  aid  him  in  turning  it  to  profit,  or 
merely  to  conceal  his  guilt,  or  screen  him  from  the  conse- 
quences.* So  where  a  wife  attempted  to  break  up  coining  im- 
plements at  the  time  of  her  husband's  apprehension,  it  was  held 
that  if  done  with  the  object  of  screening  him,  it  was  no  evi- 
dence of  a  guilty  possession  by  her.^  And  where  a  man  and  his 
wife  were  found  guilty  of  wounding  a  person  with  intent  to 
disfigure  him  and  to  do  him  grievous  bodily  harm,  but  the  jury 
found  that  the  wife  acted  under  the  coercion  of  the  husband 
and  did  not  personally  inflict  any  violence  on  the  prosecutor,  it 
was  held  by  the  Criminal  Court  of  Appeal  that  the  conviction 
against  the  wife  could  not  be  supported.^  In  all  such  cases, 
every  sound  principle  of  interpretation  and  judgment  requires, 
that  in  the  absence  of  contrary  proof  the  act  shall  be  referred 
to  the  operation  of  the  least  guilty  motive  ;  conformably  to  the 

J  State  V.  MiUer,  9  Houst.  564.  2  gtone  v.  State  (Ala.),  17  So.  114 

"  Elizabeth  v.  State,  27  Tex.  Crim.  App.  329. 

*  Reg.  V.  M'Clarens,  3  Cox's  C.  C.  425 ;  S.  P.  Reg.  v.  Brookes,  6  Id.  147. 

s  Reg.  V.  Boober,  5  Cox's  C.  C.  272. 

6  Reg.  V.  Smith  and  wife,  27  L.  J.  M.  C.  204. 


250        EFFECT  OF  THE  ABSENCE  OF  APPARENT  MOTIVE 

iaia,xiv^,prcesu7nptioJudicaturpotentior  qum  est  henignior}  Of 
this  evident  principle  of  justice  the  old  English  statute  21  Jac. 
I.,  c.  27  (now  no  longer  in  force),  which  made  the  concealment 
of  the  death  of  an  illegitimate  child  by  its  mother  a  conclusive 
presumption  of  murder,  unless  she  could  make  proof  by  one 
witness,  at  least,  that  the  child  was  born  dead,  was  a  flagrant 
violation.  It  is  on  this  principle  that,  when  a  special  intent  is 
made  by  statute  an  essential  ingredient  of  any  offence,  as  in 
the  cases  of  assault  with  intent  to  murder,  or  to  rob,  or  to 
commit  a  felony,  or  to  prevent  lawful  apprehension  or  detainer, 
such  special  intent  must  be  proved  by  direct  evidence  or  by  cir- 
cumstances which  necessarily  or  reasonably  lead  to  the  infer- 
ence of  such  intention.  Thus  a  charge  of  the  statutable  offence 
of  throwing  upon  or  otherwise  applying  to  any  person  any  cor- 
rosive fluid  or  other  destructive  matter,  with  intent  to  burn, 
maim,  or  do  some  bodily  harm,  is  not  sustained  by  proof  of 
throwing  a  corrosive  fluid  for  the  purpose  of  burning  the 
clothes.^  And  on  the  trial  of  a  man  for  throwing  a  stone  at  a 
railway  carriage  with  intent  to  endanger  the  safety  of  the  pas- 
sengers, where  it  appeared  that  the  prisoner  threw  a  stone  just 
as  the  train  was  setting  off,  at  a  passenger  against  whom  he  had 
been  much  excited,  Mr.  Justice  Erie  told  the  jury  that  they 
must  be  satisfied  that  the  intent  to  endanger  the  safety  of  any 
person  travelling  by  the  railway  must  have  been  an  intent  to 
inflict  some  grievous  bodily  harm,  and  such  as  would  sustain 
an  indictment  for  assaulting  or  wounding  a  person  with  intent 
to  do  some  bodily  harm ;  but  that  as  that  is  a  question  of 
degree,  which  it  is  impossible  to  define  further  than  in  those 
terms,  it  must  be  a  question  for  the  jury  upon  the  facts  whether 
there  had  been  such  an  intent.*^ 

The  prima  facie  presumption  in  favor  of  innocence,  from  the 
absence  of  all  apparent  motive,  is  greatly  strengthened  where 
all  inducement  to  the  commission  of  the  imputed  crime  is 
opposed  by  strong  counteracting  motives ;  as  where  a  party 
indicted  for  arson  with  intent  to  defraud  an  insurance  office  had 
furniture  on  the  premises  worth  more  than  the  amount  of  his 
insurance,*  or  where  a  party  accused  of  murder  had  a  direct 

1  Henoch,  ut  supra,  lib.  v.  pr.  29. 

^  Reg.  V.  Coppard,  Kingst.  Wint.  Ass.,  1855,  coram  Mr.  Justice  Crompton  ; 
and  see  Rex  v.  Coke  and  Woodburne,  ut  supra. 
8  Reg.  V.  Rooke,  1  F.  &  F.  107. 
*  Rex  V.  Bingham,  Horsham  Spr.  Ass.,  1811. 


TO  COMMIT  THE  CRIME  CHARGED.  251 

interest  in  the  continuance  of  the  life  of  the  party  supposed  to 
have  been  murdered.^  A  fortiori  would  this  presumption  seem 
to  apply  where  the  life  of  the  suspected  party  has  been  endan- 
gered, as  the  consequence  of  the  supposed  criminal  act;  as 
where  a  party  charged  with  murder  by  poisoning  had  herself 
partaken  of  the  poisoned  food :  ^  but  this  circumstance,  of 
apparently  favorable  presumption,  may  have  been  resorted  to 
as  an  artifice  to  avert  suspicion,  especially  if  the  quantity  taken 
has  not  been  sufficient  seriously  to  endanger  life.^ 

1  Jlex  V.  Downing,  infra. 

2  Reg.  V.  Hawkins,  Stafford  Summer  Ass..  1839. 

8  Rex  V.  "Wescombe,  and  Rex  v.  Nairn,  tit  supra,  90.   And  see  Rex  v.  Fan- 
ning, coram  the  Recorder  of  London,  Sess.  Papers,  1815,  infra. 


CHAPTER  VI. 

DECLARATIONS  AND  THREATS    OF  THE   DECEASED. 

The  importance  of  declarations  of  the  defendant  as  indi- 
cating a  disposition  to  commit  the  act  charged  has  been  dwelt 
upon  in  an  earlier  chapter.  But  in  murder  trials  it  frequently 
happens  that  the  defendant  claims  that  he  committed  the  act 
in  self-defence.  In  such  cases  evidence  that  the  deceased  had 
made  threats  indicating  an  angry  and  revengeful  spirit 
towards  the  prisoner,  and  a  determination  to  attack  him,  is 
admissible.  Such  evidence  is  introduced  for  the  purpose  of 
throwing  light  upon  the  attitude  of  the  parties  towards  each 
other,^  the  reasonableness  of  the  defendant's  fears,^  and  as  tend- 
ing to  show  that  the  deceased  was  the  aggressor.^ 

But  evidence  of  antecedent  threats  is  inadmissible  in  behalf 
of  the  defendant  to  support  a  plea  of  self-defence  where  there 
has  been  no  evidence  of  any  overt  act  by  the  deceased.*  And 
such  overt  act  must  consist  of  a  hostile  demonstration  of  such 
a  character  as  to  impress  on  the  defendant  the  imminence  of 
the  danger  of  loss  of  life  or  great  bodily  harm.^  But  it  is 
sufficient  if  there  is  the  slightest  evidence  tending  to  show  a 
hostile  demonstration  which  may  reasonably  be  regarded  by 
the  accused  as  placing  him  in  imminent  danger  of  life  or  of 
great  bodily  harm.® 

As  to  the  admissibility  of  evidence  of  threats  by  the 
deceased  not  communicated  to  the  defendant  previous  to  the 
fatal  affray,  the  decisions  have  not  been  uniform  ;  but  by  the 

1  Dupree  v.  State,  33  Ala.  380 ;  73  Am.  Dec.  423 ;  State  v.  Evans,  33  W. 
Va.  417  ;  Wood  v.  State,  92  Ind.  269. 

2  Karr  v.  State  (Ala.),  ;  14  So.  851  ;  Pitman  v.  State,  22  Ark.  354. 

8  Basye  v.  State  (Neb.),  63  N.  W.  811 ;  Cannon  v.  State,  60  Ark.  564. 

*  Hill  V.  State  (Miss.),  16  So.  901  ;  State  v.  King,  47  La.  Ann.  28  ;  State  v. 
Vallery,  47  La.  Ann.  182 ;  Green  v.  State,  69  Ala.  6 ;  Serr  v.  Campbell,  9 
Mont.  16. 

6  State  V.  Stewart,  47  La.  Ann.  e  Garner  v.  State,  28  Fla.  113. 

252 


DECLARATIONS  AND  THREATS  OF  THE  DECEASED.       £53 

weight  of  modern  authority,  it  seems  that  evidence  of  com- 
municated threats  is  admissible  for  several  purposes.  The 
remarks  of  Mr.  Justice  Grover,  in  Stokes  v.  People,  are  suffi- 
ciently valuable  to  merit  an  extended  quotation.  The  learned 
Judge  said : — "  Evidence  of  threats  made  by  the  deceased, 
which  had  been  communicated  to  the  accused,  was  received  by 
the  court.  Proof  of  the  latter  facts  was  competent,  as  tending 
to  create  a  belief  in  the  mind  of  the  accused  that  his  life  was 
in  danger,  or  that  he  had  reason  to  apprehend  some  great 
bodily  harm  from  the  acts  and  motions  of  the  deceased,  when, 
in  the  absence  of  such  threats,  such  acts  and  motions  would 
cause  no  such  belief.  Bat  why  admissible  upon  this  ground  ? 
For  the  reason  that  threats  made  would  show  an  attempt  to 
execute  them  probable  when  an  opportunity  occurred,  and  the 
more  ready  belief  of  the  accused  would  be  justified  to  the 
precise  extent  of  this  probability.  But  an  attempt  to  execute 
threats  is  equally  probable,  when  not  communicated,  to  the 
party  threatened  as  when  they  are  so ;  and  when,  as  in  this 
case,  the  question  is  whether  the  attempt  was  in  fact  made^ 
we  can  see  no  reason  for  excluding  them  in  the  former  that 
would  not  be  equally  cogent  for  the  exclusion  of  the  latter, 
the  latter  being  admissible  only  for  the  reason  that  the  person 
threatened  would  the  more  readily  believe  himself  endangered 
by  the  probability  of  an  attempt  to  execute  such  threats. 
Threats  to  commit  the  crime  for  which  a  person  is  upon  trial 
are  constantly  received  as  evidence  against  him,  as  circum- 
stances proper  to  be  considered  in  determining  the  question 
whether  he  has,  in  fact,  committed  the  crime,  for  the  reason 
that  the  threats  indicate  an  intention  to  do  it,  and  the  existence 
of  this  intention  creates  a  probability  that  he  has  in  fact  com- 
mitted it.  Had  the  deceased,  just  previous  to  this  going  into 
the  hotel  where  the  transaction  occurred,  declared  that  he  was 
going  there  to  kill  the  accused,  and  that  he  was  prepared  to 
execute  this  purpose,  we  think  the  evidence  would  have  been 
competent  upon  the  question  whether  he  had  in  fact  made  the 
attempt  when  that  question  was  litigated.  And  yet  there  is 
in  principle  no  difference  between  this  and  the  testimony 
offered  and  rejected.  The  difference  is  only  in  degree."  ^ 
And  an  examination  of  the  authorities  discloses  that  threats 

1  53  N.  Y.  174. 


254      DECLARATIONS  AND  THREATS  OF  THE  DECEASED. 

of  the  deceased   not    communicated  to  the  defendant  are  re> 
ceived  in  evidence  for  the  following  purposes  : 

1.  As  corroborative  and  explanatory  of  communicated 
threats ;  ^ 

2.  To  prove  the  state  of  feeling  entertained  by  the  deceased 
towards  the  accused  ;  ^ 

3.  To  throw  light  upon  the  inquiry  as  to  who  began  the 
aJBPray.^ 

1  Holler  V.  State,  37  Ind.  57 ;  10  Am.  Rep.  74 ;  State  v.  Williams,  40  La. 
Ann.  168. 

2  Keener  v.  State,  18  Ga.  194  ;  63  Am.  Dec.  269. 

8  State  V.  Bailey,  94  Mo.  311  ;  Sparks  v.  Com.,  89  Ky.  644;  Potter  v. 
State,  85  Tenn.  88.  See  Wilson  v.  State  (Fla.),  and  note  thereto,  17  L.  R. 
A.  654. 


CHAPTER  VII. 

THE  EXPLANATION  OF   UNFAVORABLE  CIRCUMSTANCES. 

As  is  the  case  with  other  presumptions,  so  the  inference  of 
guilt  from  the  recent  possession  of  stolen  property  may  be 
rebutted  by  circumstances  which  create  a  counter-presump- 
tion :  as  where  the  property  is  found  in  the  prisoner's  posses- 
sion under  circumstances  which  render  it  more  probable  that 
some  other  person  was  the  thief.  Therefore,  where,  on  the 
trial  of  a  mother  and  her  two  sons  for  sheep-stealing,  it  was 
proved  that  the  carcass  of  a  sheep  was  found  in  the  house  of 
the  mother,  it  was  considered  that  the  presumption  arising 
from  the  possession  of  the  stolen  property  immediately  after 
the  theft  was  rebutted  so  far  as  respected  her,  by  the  circum- 
stance that  male  footsteps  only  were  found  near  the  spot 
from  which  the  sheep  had  been  stolen.^  A  woman  was  tried 
for  the  larceny  of  five  saws  which  had  been  stolen  from  the 
workshop  of  a  hat-block  turner  during  the  night.  There  was 
a  hole  in  the  building  large  enough  for  a  person  to  have  crept 
through  it.  On  the  following  day  he  pledged  two  of  the 
saws  with  a  pawnbroker  in  the  neighborhood.  On  the  follow- 
ing night  the  house  of  the  prosecutor  was  broken  open  and 
a  number  of  articles  stolen,  and  no  communication  existed 
between  the  house  and  the  workshop.  Two  days  afterwards 
the  prisoner  was  taken  into  custody  for  this  theft,  in  the 
house  of  a  man  who  was  himself  charged  with  having  com- 
mitted the  burglary.  Mr.  Baron  Gurney  said  it  was  im- 
probable that  the  female  should  have  taken  these  saws,  but 
that  it  was  extremely  probable  that  she  should  have  been 
employed  by  another  person  to  pawn  them  ;  that  it  was  hardly 
a  case  in  which  the  general  rule  could  apply,  and  that  it  would 
be  safer  to  acquit  the  prisoner.^  Circumstances  of  conduct 
also  may  repel  this  prima  facie  presumption  ;  as  where  the 

1  Rex  V.  Arundel  and  others,  1  Lewin's  C.  C.  115. 

2  Rex  V.  Collier,  4  Jurist,  703. 

255 


256      EXPLANATION  OF  UNFAVORABLE  CIRCUMSTANCES. 

prisoner,  a  few  days  after  the  robbery  of  a  large  quantity  of 
plate  in  London,  sold  to  a  dealer  in  gold  and  silver  some  silver 
articles  marked  with  the  prosecutor's  crest  partially  obliterated, 
which  had  formed  part  of  the  stolen  property.  Mr.  Baron 
Bramwell  said  it  was  a  circumstance  in  the  prisoner's  favor 
that  he  had  disposed  of  the  silver  at  a  place  where  he  had 
been  known  for  several  years,  and  had  been  in  the  habit  of 
bringing  gold  and  silver  for  sale,  and  did  not  appear  to  have 
made  any  attempt  at  secrecy.     The  prisoner  was  acquitted.  ^ 

Circumstances  of  apparently  the  most  unfavorable  presump- 
tion may  be  susceptible  of  an  explanation  consistent  with  the 
prisoner's  innocence,  and  really  be  irrelevant  to  the  particular 
inference  sought  to  be  derived  from  them ;  ^  or  they  may  be 
opposed  by  circumstances  which  weaken  or  neutralize,  or  even 
repel  the  imputed  presumption,  and  induce  a  stronger  counter- 
presumption,^  to  every  allegation  of  the  existence  of  which 
justice  demands  that  dispassionate  and  candid  consideration  be 
given.  On  the  trial  of  a  shoemaker  for  the  murder  of  an  aged 
female,  it  appeared  that  his  leathern  apron  had  several  circular 
marks  made  by  paring  away  superficial  pieces,  which  it  was 
supposed  had  been  removed  as  containing  spots  of  blood,  but  it 
was  satisfactorily  proved  that  the  prisoner  had  cut  them  off 
for  plasters  for  a  neighbor.^  A  policeman  on  his  examination 
before  the  coroner,  where  the  question  was,  whether  a  young 
woman  had  been  murdered  or  had  committed  suicide,  swore 
that  a  piece  of  rope  found  in  the  prisoner's  box  appeared  to 
have  been  cut  from  the  same  piece  that  was  round  the  neck  of 
deceased ;  but  on  the  trial  he  acknowledged  that  he  had  been 
mistaken ;  the  two  pieces  of  rope  had  in  the  interim  been  ex- 
amined by  a  rope-maker,  and  were  found  not  to  correspond, 
one  piece  being  twisted  to  the  right,  and  the  other  to  the  left.^ 
The  prisoner  was  convicted  upon  the  general  evidence,  and  exe- 
cuted. Two  ]nen  were  tried  for  killing  a  sheep  with  intent  to 
steal  the  carcass.  The  prosecutor  had  three  sheep  on  a  com- 
mon, on  the  14th  of  December,  on  which  evening  the  prisoners, 
one  of  whom  had  a  gun,  were  seen  near  the  common  driving 
several  sheep  before  them.     One  of  the  witnesses,  when  near 

1  Reg.  V.  Benjamin,  C.  C.  C,  June,  1858. 

2  Rex  V.  Thornton,  Rex  v.  Looker,  infra.  ^  Ibid. 

*  Rex  V.  Fitter,  before  Mr.  Justice  Taunton,  Warwick  Summer  Ass.,  1834. 
'  Reg.  V.  Drory,  coram  Campbell,  L.  C.  J.,  Chelmsford  Spr.  Ass.,  1851. 


EXPLANATION  OF  UNFAVORABLE  CIRCUMSTANCES.     257 

the  prosecutor's  house,  heard  the  report  of  a  gun  m  the  diree- 
tion  of  the  common,  and,  having  a  suspicion  of  the  object  of 
the  prisoners,  went  to  the  prosecutor's  house  and  communicated 
his  suspicion,  in  consequence  of  which  the  prosecutor  and  the 
witness  went  to  the  common  on  which  the  sheep  had  been  left 
feeding,  and  discovered  that  one  of  them  was  not  there.  The 
prisoners  were  apprehended  the  same  night  at  their  respective 
homes.  In  the  lodgings  of  one  of  the  prisoners  a  gun  was 
found  which  had  been  recentl}^  fired,  and  some  shot  and 
powder  wrapped  in  a  piece  of  newspaper,  from  which  two 
small  pieces  had  been  torn ;  and  upon  the  person  of  the  other 
prisoner  a  knife  was  found  discolored  with  blood.  No  traces 
were  found  of  the  lost  sheep  at  that  time,  but  the  next  day  the 
carcass  was  found,  concealed  by  fern,  on  the  common ;  the 
sheep  had  been  shot  and  also  stuck  in  the  neck.  Two  days 
afterwards,  on  searching  near  the  spot  where  the  carcass  was 
found,  two  small  pieces  of  newspaper  were  discovered,  singed 
and  bearing  marks  of  having  been  fired  from  a  gun,  which  on 
comparison  were  found  to  be  the  identical  pieces  so  torn  from 
the  paper  in  question.  Notwithstanding  these  apparently  con- 
clusive circumstances,  the  jury  acquitted  the  prisoners,  as  it 
appeared  from  the  cross-examination  of  one  of  the  witnesses 
that  he  had  seen  them  shooting  on  the  common  on  the  previous 
Sunday.^  A  man  was  tried  for  murder  on  Har^vich  Moor, 
under  circumstances  which  were  extremely  suspicious ;  but  the 
presumption  against  him  was  greatly  weakened,  if  not  entirely 
destroyed,  by  the  circumstance  that  six  shots  extracted  from 
the  deceased's  brain  all  corresponded  in  weight  with  the  shot 
knoAvn  as  No.  3,  while  the  shot  in  the  prisoner's  bag  contained 
a  mixture  of  Nos.  2  and  3,  and  the  charge  in  his  gun  was  found 
to  contain  the  same  mixture.^  A  druggist's  apprentice  was 
tried  for  the  murder,  by  prussic  acid,  of  a  female  servant  who 
was  pregnant  by  him,  and  the  case  was  one  of  much  suspicion ; 
but  there  was  a  strong  counter-presumption,  from  the  fact  that 
the  deceased  had  made  preparations  for  a  miscarriage  on  the 
very  night  in  question  .^     In  a  prosecution  for  murder  where  it 

^  Reg.  V.  Courtnage  and  Mossingliam,  coram  Mr.  Serjeant  Atcherlf.y, 
Winchester  Spring  Ass.,  1843. 
2  Reg.  V.  Whittle,  Liverpool  Spring  Assizes,  1839,  coram  Mr.  Baron  Al- 

DERSON. 

*  Reg.  V.  Freeman,  Leicester  Spring  Assizes,  1839,   coram  Best,  L.  C.  J. 
And  see  Rex  v.  Barnard,  19  St.  Tr.  815. 
17 


258      EXPLANATION  OF  UNFAVORABLE  CIRCUMSTANCES. 

appeared  that  the  mortal  wound  had  been  inflicted  by  an  axe 
which  was  found  in  the  snow  with  no  tracks  leading  to  it,  and 
that  it  could  have  been  thrown  from  a  path  near  the  house 
where  the  murder  was  done,  and  there  was  evidence  that 
respondent  could  not  have  thrown  it  so  far,  it  was  held  error 
to  refuse  an  instruction  that  if  the  axe  was  thrown  such  a  dis- 
tance as  to  satisfy  the  jury  that  the  defendant  could  not  have 
thrown  it,  then  the  jury  should  be  satisfied  that  she  was  not 
guilty.  In  the  language  of  the  court,  "  every  circumstance 
developed  on  the  trial  showed  that  the  person  who  committed 
the  crime  actually  did  throw  the  axe.  It  was  shown  no  other 
could  have  thrown  it  away  ;  and  if  the  jury  were  satisfied  that 
the  respondent  could  not  have  thrown  it  where  it  was  found, 
they  were  bound  to  acquit.  It  was  something  more  than  a 
strong  circumstance.  It  was  conclusive  proof  by  the  facts 
developed  upon  the  trial,  that  the  respondent  could  not  have 
been  guilty  of  the  offence  if  she  could  not  have  thrown  the  axe 
where  it  was  found."  ^ 

Nor  must  it  be  overlooked,  as  one  of  the  sources  of  error  and 
fallacy  in  these  cases,  that  circumstances  of  adverse  presump- 
tion, apparently  the  most  conclusive,  have  been  fabricated  by 
the  real  offender,  in  order  to  preclude  suspicion  from  attaching 
to  himself,  and  to  cause  it  to  rest  upon  another ;  as  where  a 
party  was  convicted  upon  an  indictment  for  privily  convey- 
ing three  ducats  into  the  prosecutor's  pockets,  with  intent  to 
charge  him  with  having  robbed  him  of  the  same  ;  ^  or  where 
an  offender  surreptitiously  put  on  the  shoes  of  another  person 
while  engaged  in  the  commission  of  crime,  in  order  that  the 
impressions  might  lead  to  the  inference  that  the  crime  was 
committed  by  him ;  ^  or  where  the  guilty  person  not  only  wore 
the  shoes  but  also  used,  in  committing  the  crime,  the  gun  of 
one  who  was  known  to  be  at  enmity  with  the  deceased. 

1  People  V.  Peterson,  93  Mich.  27. 

2  Rex  V.  Simon,  19  St.  Tr.  680  ;  but  upon  a  new  trial  the  defendant  was 
acquitted. 

2  See  the  case  of  Mayenc,  Gabriel,  ut  supra,  403.  And  see  other  such 
cases  in  Wharton's  Crim.  Law,  and  in  the  Theory  of  Presumptive  Proof, 
App. ;  but  Mr.  Justice  Park,  in  Rex  v.  Thurtell,  Hertford  Winter  Assizes, 
1824,  said  that  the  latter  were  of  no  authority,  and  possibly  mere  romance. 


CHAPTER  VIII. 

EVIDENCE   OF  CHARACTER. 

In  forming  a  judgment  of  criminal  intention,  evidence  that 
the  party  had  previously  borne  a  good  character  is  often 
highly  important.^  In  doubtful  cases,  especially,  good  charac- 
ter is  generally  entitled  to  great  consideration.'-^  Where  the 
evidence  is  wholly  circumstantial,^  and  the  testimony  for  and 
against  the  accused  is  nearly  balanced,  the  weight  of  a  good 
character  ought  to  exert  a  potent  influence  in  his  favo*\*  But 
on  a  trial  for  murder  an  instruction  that  proof  of  the  defend- 
ant's good  character  for  peace  "  may  be  sufficient  to  generate 
a  reasonable  doubt  of  his  guilt,  although  no  such  doubt  would 

1  Coffee  V.  State,  1  Tex.  App.  548. 

2  Riley's  Case,  1  City  Hall  Rec.  23  ;  People  v.  Paolick,  7  N.  Y.  Cr.  R.  30  ; 
People  V.  Kirby,  1  Wheel.  Cr.  Cas.  64. 

8  But  an  instruction  that  only  in  cases  of  circumstantial  evidence,  or 
where  the  witnesses  for  the  prosecution  are  of  doubtful  credit,  is  proof  of 
the  good  character  of  the  defendant  proper  to  rebut  any  presumption  of 
guilt,  is  defective  and  improper.  State  i\  Kinley,  43  Iowa,  £94 ;  State  v. 
Rodman,  63  Iowa,  456  ;  State  v.  Beebe,  17  Minn.  241. 

4  Kistler  v.  State,  54  Ind.  400 ;  McQueen  v.  State,  83  Ind.  73  ;  Green  v. 
Cornewell,  1  City  Hall  Rec.  11.  If  the  case  hangs  in  even  balance,  evidence 
of  previous  good  character  should  make  it  preponderate  in  defendant's 
favor.  Per  Lord  Ellenborough  in  Rex  v.  Davison,  31  St.  Tr.  217  ;  State 
V.  Manluff,  1  Houst.  Crim.  R.  209.  And  see  the  language  of  L.  C.  J.  TiN- 
DALL,  in  Reg.  v.  Frost,  Gurney's  Rep.  749.  But  an  instruction  is  too  broad 
in  which  the  jury  are  told  that  evidence  of  good  character  is  proper  in  all 
criminal  cases,  and  in  doubtful  cases  frequently  becomes  material,  and  is 
sufficient  to  turn  the  scale  in  favor  of  the  accused  ;  and  should  they  be  in 
doubt  as  to  the  facts  or  guilt  of  the  defendant  as  charged,  they  may  give 
evidence  of  previous  good  character  such  weight  as  will  turn  the  scale  in 
his  favor  and  find  him  not  guilty.     State  v.  McGinnis,  6  Nev.  109. 

An  instruction  declaring  that  in  all  doubtful  cases  of  guilt  general  good 
character  is  to  be  regarded  as  a  strong  circumstance  in  favor  of  the  accused 
is  technically  wrong.  The  word  "  strong  "  should  be  omitted.  SchaUer  v. 
State,  14  Mo.  502. 

259 


260  EVIDENCE  OF  CHARACTER. 

have  existed  but  for  such  good  character,"  gives  undue  prom- 
inence to  proof  of  character.^ 

But  the  benefit  of  a  good  character  is  not  restricted  to 
minor  offences,  nor  to  cases  where  a  doubt  of  the  defendant's 
guilt  may  exist.^  If  there  is  a  reasonable  doubt  of  guilt,  the 
defendant  is  entitled  to  an  acquittal  whether  his  character  is 
good  or  bad.3  This  evidence  is  entitled  to  be  considered  in  all 
criminal  cases,  where  the  crime  charged  is  atrocious  and  where 
the  evidence  tends  strongly  to  establish  the  guilt  of  the  ac- 
cused.*    If,  however,  the  evidence  of  guilt  be  complete  and 

1  Scott  V.  State  (Ala.),  16  So.  925.  See  also  Paul  v.  State  (Ala.),  14  So. 
634  ;  Goldsmith  v.  State  (Ala.),  16  So.  933.  And  the  jury  ought  not  to  be 
told  that  if  they  find  that  the  accused's  former  life  was  such  that  the  crime 
charged  would  not  reasonably  and  naturally  find  place  in  it,  they  may  per- 
mit such  conclusion  to  raise  a  reasonable  doubt  of  his  guilt,  although  the 
eridence  satisfies  them  that  he  committed  the  crime  charged.  Langford 
V.  State,  38  Fla.  233. 

2  People  V.  lee,  72  Cal.  623  ;  State  v.  Barth,  25  S.  C.  175 ;  60  Am. 
Rep.  496 ;  United  States  v.  Roudenbush,  1  Baldw.  514  ;  United  States  v. 
Gunnell,  5  Mackey,  196 ;  State  v.  Edwards,  13  S.  C.  30 ;  Stewart  v.  State, 
22  Ohio  St.  477 ;  State  v.  Henry,  50  N.  C.  65 ;  State  v.  O'Connor,  31  Mo. 
389  ;  Baker  r.  State,  53  N.  J.  L.  45  ;  People  v.  Hancock,  7  Utah,  170  ;  Long 
V.  State,  23  Neb.  33 ;  Felix  v.  State,  18  Ala.  720  ;  Hall  v.  State,  40  Ala.  698 ; 
People  V.  Ashe,  44  Cal.  288.  ^  Holland  v.  State,  131  Ind.  568. 

*  Parrish  v.  Com.,  82  Va.  1 ;  Jupitty  v.  People,  34  111.  516  ;  Remsen  v. 
People,  43  N.  Y.  9  ;  People  v.  Stott,  4  N.  Y.  Cr.  R.  306  ;  State  v.  Horning, 
49  Iowa,  158 ;  State  v.  Northrup,  48  Iowa,  583  ;  30  Am.  Rep.  408 ;  State  v. 
Gustafson,  50  Iowa,  194  ;  State  v.  Lindley,  51  Iowa,  313  ;  33  Am.  Rep.  139. 
Evidence  of  good  character  of  the  accused  may  be  shown  in  misdemean- 
ors. Rex  V.  Harris,  32  Car.  II.,  cited  in  McNally,  Ev.  *320  ;  Rex  v.  Keogh 
(1798),  cited  in  McNally,  Ev.  *320  ;  Rex  v.  Brown  (1798),  cited  in  McNally, 
Ev.  *320. 

Shaw,  C.  J.,  said  in  Webster's  Case,  that  "Where  it  is  a  question  of 
great  and  atrocious  criminality,  the  commission  of  the  act  is  so  unusual, 
so  out  of  the  ordinary  course  of  things,  and  beyond  common  experience  ; 
it  is  so  manifest  that  the  offence,  if  perpetrated,  must  have  been  influenced 
by  motives  not  frequently  operating  on  the  human  mind  ;  that  evidence  of 
character,  and  of  a  man's  habitual  conduct  under  common  circumstances, 
must  be  considered  far  inferior  to  what  it  is  in  the  accusations  of  a  lower 
grade."  These  remarks  were  referred  to  and  disapproved  in  a  New  York 
case,  where  it  was  said  tliat  Webster's  Case  was  a  peculiar  one.  Cancemi 
V.  People,  16  N.  Y. 

They  were  quoted  again  by  the  court  in  the  trial  of  McLain  v.  Com. ,  99 
Pa.  St.  86,  with  the  following  additional  remarks:  "Evidence  of  good 
character,  when  proven  to  exist,  is  not  a  mere  make-weight  thrown  in  to 
assist  in  the  production  of  a  result  that  would  happen  at  all  events,  but  it 
is  positive  evidence.  A  case  may  be  so  made  out  that  no  previous  char- 
acter, however  good,  can  make  it  doubtful  ;  but  there  may  be  cases  in 


EVIDENCE  OF  CHARACTER.  261 

convincing,  testimony  of  previous  good  character  cannot  and 
ought  not  to  avail.^  The  reasonable  operation  of  such  evidence 
is  to  create  a  presumption  that  the  party  was  not  likely  to  have 
committed  the  act  imputed  to  him ;  ^  which  presumption,  how- 
ever weighty  in  a  doubtful  case,  cannot  but  be  irrelevant  and 
unavailing  against  evidence  which  irrefragably  establishes  the 
fact.  But  it  has  been  held  that  instructions  regarding  evidence 
as  to  character,  to  the  effect  that  it  Avas  not  to  be  allowed  to 
weigh  against  evidence  in  itself  satisfactory,  are  calculated  to 
mislead.  "  Good  character,"  said  Chief  Justice  Cooley,  "  is  an 
important  fact  with  every  man  ;  and  never  more  so  than  when 
he  is  put  on  trial  charged  with  an  offence  which  is  rendered 
improljable  in  the  last  degree  by  a  uniform  course  of  life  wholly 
inconsistent  with  any  such  crime.  There  are  cases  when  it  be- 
comes a  man's  sole  defence,  and  yet  may  prove  sufficient  to  out- 
weigh evidence  of  the  most  positive  character.  The  most  clear 
and  convincing  cases  are  sometimes  rebutted  by  it,  and  a  life  of 
unblemished  integrity  becomes  a  complete  shield  of  protection 
against  the  most  skilful  web  of  suspicion  and  falsehood  which 
conspirators  have  been  able  to  weave.  Good  character  may 
not  only  raise  a  doubt  of  guilt  which  would  not  otherwise  exist, 
but  it  may  bring  conviction  of  innocence.  In  every  criminal 
trial  it  is  a  fact  which  the  defendant  is  at  liberty  to  put  in  evi- 
dence ;  and  being  in,  the  jury  have  a  right  to  give  it  such  a 
weight  as  they  think  it  entitled  to."  ^ 

which  evidence  given  against  a  person  without  character  would  amount 
to  certainty,  in  which  a  high  character  would  produce  a  reasonable  doubt, 
or,  indeed,  actually  outweigh  evidence  which  might  otherwise  appear 
conclusive." 

1  Rex  V.  Haigh,  31  St.  Tr.  1123  :  Riley's  Case,  1  City  Hall  Rec.  23  ;  People 
V.  Haggerty,  1  City  Hall  Rec.  65  ;  Freeland's  Case,  1  City  Hall  Rec.  82  ; 
Hogan  r.  State,  36  Wis.  226  ;  U.  S.  v.  Means,  43  Fed.  Rep.  599 ;  U.  S.  v. 
Freeman,  4  Mason,  505  ;  U.  S.  v.  Newton,  52  Fed.  Rep.  275  ;  People  v. 
Kirby,  1  Wheel.  Crim.  Cas.  64  ;  United  States  v.  Johnson,  26  J>d.  Rep. 
682 ;  Coxwell  v.  State,  66  Ga.  309  ;  United  States  v.  Smith,  2  Bond,  323  ; 
Bernhardt  v.  State,  82  Wis.  23  ;  State  v.  AVells,  1  N.  J.  L.  424 ;  1  Am.  Dec. 
211  ;  Com.  v.  Robinson,  Thacher  Crim.  Cas.  230  ;  Com.  v.  Hardy,  2  Mass. 
317.  Where  the  defendant  admits  the  elements  that  constitute  the  crime, 
evidence  of  good  character  is  of  no  avail.  U.  S.  v.  Brontin,  10  Fed.  Rep. 
730  ;  U.  S.  V.  Allen,  10  Biss.  90.  And  the  fact  that  in  such  a  case  the  State 
gave  in  proof  the  bad  character  of  tlie  accused  before  the  accused  had 
initiated  the  inquiry  by  evidence  of  good  character,  is  an  unimportant 
error.     Hartless  v.  State,  32  Tex.  88. 

2  State  V.  Ormiston,  66  la.  143.  ^  People  v.  Garbutt,  17  Mich.  9. 


262  EVIDENCE  OF  CHARACTER. 

In  no  case  should  the  court  instruct  that  evidence  of  good 
character  is  of  no  avail.  No  matter  how  conclusive  the  other 
testimony  may  appear  to  be,  the  character  of  the  accused  may 
be  such  as  to  create  a  doubt  in  the  minds  of  the  jury,  and  lead 
them  to  believe  in  view  of  the  improbabilities  that  a  person  of 
such  character  could  be  guilty  of  the  offence  charged,  that  the 
other  evidence  in  the  case  is  false  or  the  witnesses  mistaken.^ 
Where  the  jury  have  been  charged  that  in  a  doubtful  case 
where  the  evidence  hangs  even,  proof  of  good  character  would 
turn  the  scale,  a  further  charge  that  if  the  crime  had  been  con- 
clusively proven  to  the  satisfaction  of  the  jury  beyond  a  reason- 
able doubt,  in  that  case  any  good  character  of  the  defendant 
does  not  avail  him,  does  not  remove  from  the  consideration  of 
the  jury  the  evidence  of  good  character  upon  the  question  of 
the  guilt  of  the  defendant.^ 

When  the  law  says  that  good  character  alone  may  be  able 
to  generate  a  doubt,  it  does  not  mean  that  it  may  be  considered 
independently  of  the  other  evidence  in  the  case,  but  in  connec- 
tion with  it.3  Upon  the  question  of  guilt  or  innocence,  the  jury 
should  consider  all  the  evidence,  including  that  in  relation  to 
character,*  and  if  therefrom  they  believe  the  accused  guilty 

1  Kistler  v.  State,  54  Ind.  400 ;  State  v.  Sauer,  38  Minn.  438  ;  Remsen  v. 
People,  43  N.  Y.  6  ;  Maclin  v.  State,  44  Ark.  115.  Mass.  Gen.  Stat.,  chap. 
115,  §  5,  provides  that  the  courts  shall  not  charge  juries  with  respect  to 
matters  of  fact.     Com.  v.  Leonard,  140  Mass.  473  ;  54  Am.  Rep.  485. 

2  People  V.  Sweeney,  133  N.  Y.  609,  aflf'g  36  N.  Y.  S.  R.  75. 

3  Pate  V.  State,  94  Ala.  14  ;  People  v.  Laird  (Mich.),  60  N.  W.  457. 

It  is  erroneous  to  instruct  that  the  defendant  may  put  his  good  reputa- 
tion before  the  jury  as  a  "  kind  of  make- weight  in  his  favor,  if  there  is  a 
pinch  in  the  case."    State  v.  Daley,  53  Vt.  442  ;  38  Am.  Rep.  694. 

*  Pharr  v.  State,  9  Tex.  App.  139  ;  Holland  v.  State,  31  N.  E.  359 ;  John- 
son V.  State  (Ala.),  16  So.  29 ;  McQueen  v.  State,  82  Ind.  72 ;  State  v.  Mc- 
Nally,  87  Mo.  644 ;  Lee  v.  State,  2  Tex.  App.  339  ;  State  v.  Alexander,  66 
Mo.  148 ;  Territory  v.  Kleen  1  Wash.  Terr.  183 ;  Reg.  v.  Whiting, 
7  Car.  &  P.  771;  Rex  v.  Stannard,  7  Car.  &.  P.  673  ;  Williams  v.  State,  52 
Ala.  411  ;  Felix  v.  State,  18  Ala.  720 ;  Hall  v.  State,  40  Ala.  698 ;  People 
V.  Bowman,  81  Cal.  566 ;  People  v.  Doggett,  62  Cal.  27 ;  People  v.  Bell,  49 
Cal.  486 ;  Carson  v.  State,  50  Ala.  134  ;  Fields  v.  State,  47  Ala.  603  ;  11 
Am.  Rep.  771  ;  State  v.  Howell,  100  Mo.  628  ;  Shropshire  v.  State,  81  Ga. 
589;  Com.  v.  Carey,  2  Brewst.  404;  People  r.  Wileman,  44  Hun,  187; 
Stephens  v.  People,  4  Park.  Crim.  Rep.  396  ;  People  v.  Spriggs,  33  N.  Y. 
S.  R.  989  ;  Stover  v.  People,  56  N.  Y.  315  ;  Remsen  v.  People,  43  N.  Y.  6, 
reversing  57  Barb.  324  ;  People  v.  Clements,  42  Hun,  353  ;  People  v.  Moett, 
23  Hun,  60  ;  People  v.  Lamb,  2  Keyes,  360  ;  United  States  v.  Jones,  31  Fed. 
Rep.  718  ;  Heine  v.  Com.,  91  Pa.  145 ;  Hanney  v.  Com.,  116  Pa.  333  ;  Com. 
V.  Cleary,  135  Pa.  64  ;   8  L.  R.  A.  301 ;  Johnson  v.  State,  94  Ala.  35. 


EVIDENCE  OF  CHARACTER.  263 

beyond  a  reasonable  doubt,  previous  good  character  should  not 
authorize  an  acquittal.^ 

The  value  of  proof  of  good  character  must  always  depend 
upon  the  circumstances  of  each  particular  case.^  The  evidence 
must  be  applicable  to  the  nature  of  the  charge  preferred  against 
the  accused.^  The  inquiry  is  generally  limited  to  that  trait  of 
character  which  has  some  relevancy  to  the  question  in  issue, 
and  which  may  be  supposed  to  render,  to  some  extent,  the 
commission  of  the  crime  charged  improbable.* 

"  What  you  want  to  get  at,"  said  Cockburn,  C.  J.,  in  a  lead- 
ing English  case,  "  is  the  tendency  and  disposition  of  the  man's 
mind  toward  committing  or  abstaining  from  committing  the 
class  of  crime  with  which  he  stands  charged."  ^ 

To  prove,  for  instance,  that  a  party  has  borne  a  good  char- 
acter for  humanity  and  kindness,  can  have  no  bearing  in  refer- 
ence to  a  charge  of  dishonesty.^ 

And  in  a  late  case  it  has  been  held  that  an  accused  charged 

1  State  V.  Slingerland,  19  Nev.  135,  disapproving  People  v.  Gleason,  1  Nev. 
176,  and  Levigne's  Case,  17  Nev,  445,  where  the  jury  was  charged,  in  effect, 
that  good  character  could  not  be  considered  unless,  from  the  other  evi- 
dence, the  jury  had  a  reasonable  doubt  of  the  defendant's  guilt.  See  also, 
as  sustaining  the  proposition  of  the  text,  People  i'.  Brooks,  131  N.  Y,  321 ; 
People  V.  Kerr,  6  N.  Y.  Supp.  674 ;  People  v.  Smith,  59  Cal,  601  ;  Hirsch- 
man  v.  People,  101  111.  568 ;  State  v.  Kilgore,  70  Mo.  546  ;  State  v.  McMur- 
phy,  52  Mo.  251 ;  Freeland's  Case,  1  City  Hall  Rec.  82  ;  Hathcock  v.  State, 
88  Ga.  91  ;  Armor  v.  State,  63  Ala.  173  ;  Becker  v.  Com.  (Pa.),  May  9, 1887; 
Lowenberg  v.  People,  5  Park.  Crim.  Rep.  414 ;  State  v.  Leppere,  66  Wis. 
855  ;  U.  S.  V.  Jackson,  29  Fed.  Rep.  503 ;  Coleman  v.  State,  59  Miss.  484 ; 
State  V.  Douglass,  44  Kan.  618  ;  State  v.  Sortor,  52  Kan.  531. 

The  evidence  of  good  character  is  to  be  considered  in  connection  with 
the  rest  of  the  evidence  as  a  part  of  the  whole,  and  it  is  for  the  jury  alone 
to  determine  whether  it  creates  a  reasonable  doubt  as  to  the  defendant's 
guilt.     Bacon  v.  State,  22  Fla.  51  ;  State  v.  Donovan,  61  la.  278. 

An  instruction  that,  where  the  defendant  had  established  a  good  char- 
acter in  a  doubtful  case,  the  law  presumed  he  would  not  commit  the  crmie, 
was  properly  refused,  where  the  jury  were  told  that  they  might  consider 
good  character  with  all  the  other  facts.     State  v.  Underwood,  76  Mo.  630. 

It  is  error  to  instruct  that  "good  character  is  a  circumstance  of  great 
weight  in  doubtful  cases,  and  of  less  weight  in  less  doubtful  cases."  John- 
son V.  State,  34  Neb.  257. 

2  Wagner  v.  State,  107  Ind.  71.  »  State  v.  Emery,  59  Vt.  84. 

*  Fletcher  v.  State,  49  Ind.  124  ;  State  v.  Bloom,  68  Ind.  54  ;  Kee  v.  State, 
28  Ark.  155  :  State  v.  Dalton.  27  Mo.  12  ;  People  v.  Josephs,  7  Cal.  129. 

6  R.  V.  Rowton,  L.  &  C.  520. 

6  Morgan  v.  State,  88  Ala.  223  ;  People  v.  Cowgill,  93  Cal.  596 ;  State  V. 
Bloom,  68  Ind.  54  ;  Walker  v.  State,  102  Ind.  502. 


264  EVIDENCE  OF  CHARACTER. 

Tvith  murder  could  not  show  that  he  was  of  a  cowardly 
nature.^ 

A  defendant  charged  with  the  breach  of  a  city  by-law  in 
driving  faster  than  a  walk  cannot  prove  that  he  is  a  careful 
driver.* 

And  it  is  not  competent  to  show,  on  a  trial  for  adultery,  that 
the  defendant  is  "  foolishly  fond  of  women."  ^  And  on  a  trial 
for  murder  it  is  not  relevant  that  the  defendant  has  been 
guilty  of  burglary  at  another  time.* 

But  when  the  charge  is  that  of  pilfering  and  stealing,  evi- 
dence of  a  high  character  for  honesty  ought  to  satisfy  a  jury 
that  the  accused  is  not  likely  to  yield  to  so  slight  a  temptation, 
unless  the  evidence  of  guilt  is  so  clear  and  overwhelming  as  to 
leave  no  doubt.^  And  it  has  been  held  that  on  a  prosecution 
for  carrying  a  pistol,  where  the  intent  is  a  necessary  element 
of  the  offence  under  the  statute,  the  defendant  may  show  his 
general  character  for  peace  and  quiet.^  Or  on  a  charge  of 
assault  with  intent  to  kill ;  ^  or  on  an  indictment  for  rape.^ 

And  very  recently  it  was  held  that  evidence  of  the  general 
reputation  of  the  accused  for  peace  and  quietude  is  permissible 
in  a  prosecution  for  murder,  though  the  murder  may  have  been 
by  poison.^ 

JS'egative  testimony  may  be  introduced  in  support  of  the 
defendant's  good  character.^''  That  the  witness  has  never  heard 
anything  against  the  defendant's  character  is  often  more  satis- 
factory than  evidence  of  a  positive  character.  A  witness  may  not 
testify  as  to  the  character  of  the  defendant  from  what  he  knows 
by  personal  acquaintance  merely,  and  where  he  knows  nothing  of 
the  reputation  borne  by  the  defendant  in  the  neighborhood  in 
which  he  lives,  and  where  he  is  not  in  such  a  position  with 

1  Walker  v.  State,  28  Tex.  App.  503.        2  Com.  v.  Worcester,  3  Pick.  463. 

8  Cauley  v.  State,  92  Ala.  71. 

*  People  V.  Greenwall,  108  N.  Y.  296. 

6  Covender  v.  State,  126  Ind.  47 ;  State  v.  Bloom,  68  Ind.  54 ;  People  v. 
Velarde,  59  Cal.  457.  s  Lann  v.  State,  25  Tex.  App.  495. 

7  State  V.  Schleagel,  50  Kan.  325. 

8  Hardtke  v.  State,  67  Wis.  552  ;  Lincecum  v.  State,  29  Tex.  App.  323. 

9  Hall  V.  State,  132  Ind.  317.  See  Whart.  Cr.  Ev.  (9th  Ed.)  §  60.  Carroll 
V.  State,  3  Humph.  315,  was  an  indictment  for  murder,  and  the  State  was 
permitted  to  prove  that  the  deceased  was  of  a  mild  and  pacific  temper,  to 
aid  the  jury  in  ascertaining  the  probable  grade  of  the  offence. 

">  Hussey  v.  State,  87  Ala.  121  ;  Gandolfo  v.  State,  11  Ohio  St.  114  ;  State 
V.  Lee,  22  Minn.  407 ;  21  Am.  Rep.  769. 


EVIDENCE  OF  CHARACTER.  265 

reference  to  the  defendant's  residence  or  circle  of  acquaintances 
as  that  the  fact  of  his  not  hearing  anything  against  him  would 
have  any  tendency  to  show  that  nothing  had  been  said,  and 
that  therefore  his  character  was  good.^ 

Character  can  be  proved  only  by  general  reputation.^ 
One's  reputation  consists  in  the  general  estimation  in  which 
he  is  held  by  his  neighbors.  This  is  to  be  ascertained  by  what 
they  generally  say  of  him.  "When  the  witness  is  allowed  to  state 
his  personal  opinion  of  the  defendant  it  is  as  a  matter  of  favor.* 

Character  may  not  be  established  by  introducing  evidence  of 
particular  acts.* 

The  correct  mode  of  inquiry  is,  as  to  the  general  character  of 
the  accused,  and  whether  the  witness  thinks  him  likely  to  be 
guilty  of  the  offence  which  is  charged  against  him.^  It  is  not 
permitted  to  adduce  evidence  that  the  prisoner  has  not  borne  a 
good  character,  an  inquiry  which  is  really  irrelevant,  and  cal- 
culated to  divert  attention  from  a  true  point  to  a  collateral 
one,  since  even  if  his  general  character  were  clearly  shown  to 
be  bad,  he  may  not  have  committed  the  act  in  question.^  For 
example,  general  evidence  that  a  defendant  is  a  bad  man  is  not 
admissible  on  a  trial  for  forgery.''  And  on  a  trial  for  the 
murder  of  a  slave  the  State  was  not  allowed  to  prove  the 
general  habit  of  the  accused  in  his  capacity  as  overseer  in 
punishing  slaves.^ 

1  Holmes  v.  State,  88  Ala.  26.     Contra,  State  v.  Sterrett,  68  la.  76. 

2  Thompson  v.  State  (Ala.),  14  So.  878  ;  Berneker  v.  State,  40  Neb. 
810. 

8  State  V.  Emery,  59  Vt.  84 ;  Com.  v.  Mullen,  150  Mass.  394  ;  Jones  v. 
State,  76  Ala.  8  ;  Com.  v.  Twitchell,  1  Brewst.  563  ;  State  v.  Pearce,  15  Nev. 
188  ;  State  v.  Nelson,  118  Mo.  124  ;  Rex  v.  Jones,  31  St.  Tr.  310. 

*  Jones  V.  State,  76  Ala.  8. 

6  Per  Lord  Ellenborough,  in  Rex  v.  Davison,  31  St.  Tr.  187  ;  Jones  v. 
State,  10  Tex.  App.  552  ;  State  v.  Dalton,  27  Mo.  12 ;  State  v.  King,  78  Mo. 
558. 

«  State  V.  Creson,  38  Mo.  372  ;  Carter  v.  State,  36  Neb.  ;  Petty  v.  Com., 
12  Ky.  L.  Rep.  919  ;  Harrison  v.  State,  37  Ala.  154  ;  State  v.  Merrill,  13  N. 
C.  269  ;  State  v.  Rainsbarger,  71  Iowa,  746 ;  Young  v.  Com.,  6  Bush,  312 ; 
State  V.  Donohoo,  22  W.  Va.  761 ;  Redman  v.  State,  1  Blackf.  967  ;  Linton 
V.  State,  88  Ala.  216 ;  Letty  v.  State  (Tex.  Crim.  App.),  Feb.  25,  1893. 

T  Pauli  V.  Com.,  89  Pa.  432. 

8  Dowling  V.  State,  5  Sm.  &  M.  664.  But  in  State  v.  Summers,  98  N.  C. 
702,  a  conviction  for  adultery,  the  Supreme  Court  says  ;  "  Before  judgment, 
a  number  of  witnesses  of  high  character  testified  that  the  defendant  was 
a  man  of  bad  character  ;  his  moral  character  being  especially  bad.     It  was 


266  EVIDENCE  OF  CHARACTER. 

This  principle  has  been  carried  so  far  that,  on  an  indictment 
for  a  particular  offence,  evidence  of  an  admission  by  the  accused 
that  he  was  addicted  to  the  commission  of  that  offence  was 
rejected  as  irrevelant.^  And  where  the  defendant  is  indicted 
for  rioting,  his  connection  with  former  riots  may  not  be  shown.^ 
But  in  Maryland  it  is  provided  by  statute  that,  where  the 
defendant  is  charged  with  being  a  common  thief,  evidence  of 
facts  or  reputation  showing  that  he  is  habitually  and  by  practice 
a  thief,  shall  be  sutRcient  for  conviction.^ 

In  the  text-books  of  the  Civil  Law,  much  stress  is  laid  upon 
the  mala  fama,  and  in  Scotland  habit  and  repute  is  an  admitted 
aggravation  in  charges  of  theft,*  but  there  are  not  wanting 
exemplifications  of  the  danger  of  permitting  the  influence  of 
such  evidence. 

If,  however,  the  presumption  arising  from  the  evidence  of 
previous  good  character  be  set  up  by  the  prisoner,  it  is  then 
competent  to  neutralize  its  effect  by  the  cross-examination  of 
his  witnesses.  When  a  Avitness  testifies  that  the  defendant's 
reputation  is  good  Avith  respect  to  some  quality  or  disposition, 
it  is  competent  to  show  by  his  cross-examination  that  he  has 
heard  reports  at  variance  Avlth  the  reputation  he  has  given  the 
party.  And  if  his  admissions  of  hearing  such  adverse  rumors  go 
to  the  extent  of  showing  that  they  were  general  in  the  neigh- 
borhood where  the  party  resided,  the  effect  of  the  witness's  testi- 
mony in  chief  would  be  destroyed.^ 

The  witness  having  testified  to  a  knowledge  of  the  character 
of  the  accused,  and  that  it  is  good,  it  is  proper  by  cross-ex- 
amination to  develop  the  extent  of  his  knowledge  of  his  char- 
acter and  the  facts  upon  which  his  opinion  is  based.  That  the 
jury  may  properly  weigh  his  estimate  of  character,  it  is  right 
that  they  be  fully  informed  of  the  facts  within  the  knowledge 
of  the  witness  which  led  him  to  the  formation  of  that  estimate.® 
The  extent  to  which  the  cross-examination  may  be  carried  rests 
largely  in  the  discretion  of  the  trial  court.  A  witness  was 
asked  if  he  had  not  heard  that  the  accused  had  been  previously 

competent  for  his  honor  to  have  such  evidence  as  he  might  deem  necessary 
and  proper  to  aid  his  judgment  and  discretion  in  determining  the  punish- 
ment to  be  imposed."  i  Rex  v.  Cole,  Best  on  Pres.  p.  212. 

2  State  V.  Renton,  15  N.  H,  169.  a  Md,  Acts,  1864,  c.  38. 

*  1  Dickson's  L.  of  Ev.  ut  supra,  22. 

6  McDonel  v.  State,  18  Cent.  L.  J.  374. 

6  Reg.  V.  Hodgkiss,  7  C.  &  P.  298. 


EVIDENCE  OF  CHARACTER.  267 

arrested  on  a  charge  of  malicious  trespass,  and  on  another  occa- 
sion for  shooting  a  turnke}^! 

In  a  case  in  Alabama  the  witness  testified  that  he  had  never 
heard  anything  against  the  defendant.  He  was  asked  on  cross- 
examination  if  he  had  not  heard  that  the  defendant  "  wore 
stripes  "  while  working  on  the  streets.^  In  a  defence  to  rape, 
where  testimony  of  the  general  good  character  of  the  accused 
was  introduced,  the  State  was  allowed  to  ask,  upon  cross-ex- 
amination, whether  a  certain  lewd  woman  had  not  lived  foi 
some  time  in  his  family .^  And  on  a  trial  for  murder,  the  pros- 
ecution was  allowed  to  ask,  in  cross-examining  a  witness  who 
testified  to  the  good  character  of  the  accused,  if  the  witness  had 
heard  that  the  accused  had  shot  some  one  else.* 

In  a  recent  case  in  Alabama  this  question  was  thoroughly 
discussed  ;  and  we  cannot  do  better  than  quote  the  summary 
of  the  law  given  by  McClellan,  J.,  in  his  exhaustive  opinion. 
"  Opinions,  rumors,  and  reports,"  said  the  learned  judge,  "  con- 
cerning the  conduct  or  particular  acts  of  the  party  under  in- 
quiry, are  the  source  from  which  in  most  instances  the  Avitness 
derives  whatever  knowledge  he  may  have  on  the  subject  of 
general  reputation  ;  and  as  a  test  of  his  information,  accuracy, 
and  credibility,  but  not  for  the  purpose  of  proving  particular 
acts  or  facts,  he  may  always  be  asked  on  cross-examination,  as 
to  the  opinions  he  has  heard  expressed  by  members  of  the  com- 
munity, and  even  by  himself  as  one  of  them,  touching  the 
character  of  the  defendant  or  deceased,  as  the  case  may  be,  and 
whether  he  has  not  heard  one  or  more  persons  of  the  neighbor- 
hood impute  particular  acts  or  the  commission  of  particular 
crimes  to  the  party  under  investigation,  or  reports  and  rumors 
to  that  effect.  But  it  is  not  proper  even  on  cross-examination 
to  elicit  the  witness's  knowledge  of  the  conduct  or  of  particular 
acts  of  a  defendant  or  other  person,  whose  character  is  involved 
in  the  issue."  ^ 

But  facts  must  be  asked  about  and  not  mere  accusations, 

»  Randall  v.  State,  132  Ind.  539. 

2  Holmes  v.  State,  88  Ala.  26.  See  also  D'Arwan  v.  State,  71  Ala.  353  ; 
State  V.  Merriman,  34  S.  C.  576. 

8  State  V.  Jerome,  33  Conn.  265.  *  Ogburn  v.  State,  87  Ga.  173. 

6  Moulton  V.  State,  88  Ala.  116  ;  6  L.  R.  A.  301.  See  also  State  v.  Bal- 
lard, 100  N.  C.  486  ;  State  v.  Austin,  108  N.  C.  780  ;  Engleman  v.  State,  2 
Ind.  91 ;  Gordon  v.  State,  3  la.  410  ;  Garrett  v.  State,  97Ala.  18  ;  Pattrrson 
i\  State,  41  Neb.  538. 


268  EVIDENCE  OF  CHARACTER. 

■whose  truth  is  not  presumed,  and  which  therefore  do  not  tend 
to  impair  the  moral  character.^  An  indictment  is  a  severe  ac- 
cusation.^ 

Where  the  defendant  offers  himself  as  a  fatness  he  is  sub- 
ject to  cross-examination  ;  ^  and  no  modification  of  the  rules 
of  cross-examination  will  be  made  as  to  him.*  A  witness  was 
asked  whether  he  had  not  been  guilty  some  time  before  of  an 
assault  on  a  person  named.^  In  another  case  the  defendant 
was  asked  whether  he  had  not  been  suspended  from  practising 
as  an  attorney.^  On  an  indictment  for  selling  lottery  tickets 
the  defendant  was  asked  on  cross-examination  whether  he  had 
been  convicted  of  sending  lottery  papers  through  the  mail.'^ 
For  the  purpose  of  discrediting  witnesses  testifying  to  the 
good  character  of  the  accused,  they  may  be  cross-examined  as 
to  the  grounds  of  their  belief.^  But  it  is  not  competent  to 
repel  such  evidence  by  calling  witnesses  to  give  evidence  of 
the  prisoner's  general  bad  character.^  Thus  where  a  prisoner 
was  indicted  for  a  highway  robbery,  and  called  a  witness  who 
deposed  to  having  known  him  for  years,  during  which  time  he 
had  borne  a  good  character,  it  was  permitted  to  ask  the  witness 
on  cross-examination  whether  he  had  not  heard  that  the 
prisoner  was  suspected  of  having  committed  a  robbery  which 
had  taken  place  in  the  neighborhood  some  years  before ;  Mr. 
Baron  Parke  said,  that  "  the  question  is  not  whether  the  pris- 
oner was  guilty  of  that  robbery,  but  whether  he  was  suspected 
of  having  been  implicated  in  it.  A  man's  character,"  added 
the  learned  judge,  "  is  made  up  of  a  number  of  small  circum- 

1  People  V.  Crapo,  76  N.  Y.  288.  2  ^yan  v.  People,  79  N.  Y.  594. 

'^  And  in  Massachusetts  this  is  not  confined  to  the  matters  inquired  of  in 
chief.     Com.  v.  Morgan,  107  Mass.  199. 

4  Spies  V.  People,  123  111.  1  ;  People  v.  McGungill,  41  Cal.  423 ;  State  v. 
Reegan,  5  iMo.  App.  592 ;  People  v.  Fong  Ching,  78  Cal.  169  ;  Connors  v. 
People,  50  N.  Y.  240  ;  Norfolk  v.  Gaylord,  28  Conn.  309. 

On  trial  for  an  illegal  sale  of  liquors,  the  defendant  offei'ed  himself  as 
a  witness  in  his  own  behalf,  and  then,  on  cross-examination,  refused  to 
answer  a  question  relating  to  the  sale.  It  was  held  that  it  was  proper  for 
the  State's  counsel  to  comment  of  this.    State  v,  Ober,  53  N.  H.  459. 

6  People  V.  Irving,  2  N.  Y.  Cr.  R.  171. 

6  People  V.  Reaney,  4  N.  Y.  Cr.  R.  1, 

7  People  V.  Noelke,  1  N.  Y.  Cr.  R.  495.  »  Taylor's  L.  of  Ev.  310. 

9  Reg.  V.  Burt  and  others,  5  Cox's  C.  C.  284.  And  rebuttal  evidence  show- 
ing the  local  reputation  of  the  defendant  in  the  neighborhood  remote  from 
the  party's  residence,  as  to  particular  facts,  is  not  admissible.  GriflGln  v. 
State,  14  Ohio  St.  55. 


EVIDENCE  OF  CHARACTER.  269 

stances,  of  which  his  being  suspected  of  misconduct  is  one  ; "  ^ 
but  Mr.  Justice  Erie  refused  to  permit  the  cross-examination 
of  a  witness  to  character  as  to  circumstances  of  suspicion 
against  the  prisoner  which  occurred  upon  the  same  day  as  the 
alleged  offence  Avas  committed.'^ 

And  it  is  generally  held  that  character  may  not  be  rebutted 
by  evidence  of  conduct  or  particular  acts.^  The  prisoner  was 
tried  upon  an  indictment  for  having  counterfeit  money  in  his 
possession,  and  a  new  trial  was  granted  because  the  prosecutor 
had  been  allowed  to  prove  that  the  prisoner  had  been  in  prison 
in  another  State.^ 

And  where  the  defendant  is  charged  with  murder,  the  State 
may  not  introduce  evidence  tending  to  prove  that  he  had 
previously  been  involved  in  personal  difficulties,  and  that  he 
had  on  one  occasion  threatened  to  shoot  a  person.^  And  an 
act  of  violence  by  the  prisoner  against  another  than  the 
deceased  at  a  time  before  the  difficulty  and  at  a  different 
place  may  not  be  shown. ^ 

An  exception  to  the  rule  has  been  created  in  England  by 
statute  6  and  7  William  IV.  c.  Ill,  which  enacts  that,  if  upon 
the  trial  of  any  person  for  an}'-  subsequent  felony,  such  person 
shall  give  evidence  of  his  good  character,  it  shall  be  lawful 
for  the  prosecutor,  in  answer  thereto,  to  give  evidence  of  the 
conviction  of  such  prisoner  for  the  jjrevious  felony,  and  that 
the  jury  shall  inquire  of  the  previous  conviction  and  subse- 
quent offence  at  the  same  time.  This  provision  was  extended 
by  St.  1-1  &  15  Vict.  c.  19,  s.  9,  to  many  misdemeanors.  In  a 
case  tried  while  both  these  statutes  were  still  in  force,  it  was 
held  that  the  statutes  equally  applied  where  the  evidence  of 
good  character  was  obtained  by  the  prisoner's  counsel  on  the 
cross-examination  of  the  witnesses  for  the  prosecution.^  But 
this  latter  statute  was  repealed  by  St.  24  &  25  Yict.  c.  95. 

The  defendant  may  not  give  evidence  relating  to  his  char- 

1  Rex  V.  Wood,  5  Jurist,  225  ;  Best  on  Pres.  215. 

2  Reg.  V.  Rogan  &  Elliott,  1  Cox's  C.  C.  291. 

3  McCarty  v.  People,  51  111.  231  ;  Reddick  v.  State,  25  Fla.  112  ;  Dupree 
V.  State,  33  Ala.  380  ;  73  Am.  Dec.  422  ;  Rex  v.  Rowton,  34  L.  J.  M.  C.  57 ; 
1  Leigh  &  C.  520  ;  State  v.  Laxton,  76  N.  C.  216  ;  Simpson  v.  State,  1  Ala. 
L.  J.  239,  cited  in  3  Crim.  L.  Mag.  880  ;  Com  v.  O'Brien,  119  Mass.  342  ;  20 
Am.  Rep.  325  ;  Morgan  v.  State,  88  Ala.  223. 

4  People  V.  White,  14  Wend.  111.  ^  State  v.  Sterrett,  71  la.  386. 

6  Brownell  v.  People,  38  Mich.  732.       ^  Reg.  v.  Shrimpton,  3  C.  &  K.  373. 


270  EVIDENCE  OF  CHARACTER. 

acter  at  a  time  later  than  the  off  ence  with  which  he  is  charged.  ^ 
And  one  who  has  learned  since  the  offence  what  the  defend- 
ant's character  was  prior  thereto  may  not  testify .^  And  the 
State  in  its  rebuttal  evidence  should  be  restricted  to  the 
time  of  the  alleged  offence,  and  not  be  allowed  to  show  the 
character  of  the  accused  at  the  time  of  the  trial,^ 

There  have  been  cases  which  have  held  that,  where  the  evi- 
dence is  circumstantial,  and  no  evidence  of  character  is  pro- 
duced, the  probability  of  guilt  is  stronger  than  if  a  good  char- 
acter had  been  shown.^  But  a  different  ruling  has  been  made 
in  late  cases  in  the  highest  courts  of  the  same  States,  and  it 
may  be  said  to  be  the  laAV  that  the  failure  of  the  defendant  to 
call  witnesses  to  prove  his  general  good  character  raises  no 
presumption  against  it,^ 

And  it  is  an  error  of  the  gravest  character  to  allow  the 
counsel  for  the  prosecution  to  refer  to  such  omission.® 

But  an  instruction  saying  that  "  the  character  of  every 
defendant  in  a  criminal  case  is  conclusively  presumed  to  be 
good  "  is  too  strong."  In  the  absence  of  proof  on  the  subject, 
it  has  been  recently  said,  the  jury  are  not  authorized  to  assume 
that  character  is  either  good  or  bad  and  allow  the  assumption 
to  affect  their  judgment.^ 

^  State  V.  Johnson,  1  Winst.  151  ;  Graham  v.  State,  29  Tex.  App.  31  ; 
Whiter.  Com,,  80  Ky.  480.  An  objection  to  the  fox-m  of  the  question, 
"  Are  you  acquainted  with  defendant's  reputation  as  a  peaceable,  law-abid- 
ing citizen?"  was  pi'operly  sustained,  as  the  question  was  not  explicit 
enough  as  to  time  and  place.     State  v.  Ward,  73  Iowa,  532. 

2  Griffith  V.  State,  90  Ala.  583. 

3  State  V.  Johnson,  60  N.  C.  152  ;  Wool  v.  State,  20  Ohio  St.  460  ;  Brown 
V.  State,  46  Ala.  175.  The  contrary  was  held  in  a  Massachusetts  case,  but 
it  was  there  said  that  such  evidence  ought  to  be  received  with  caution. 
Com.  V.  Sackett,  22  Pick.  394.  The  chai-acter  of  the  defendant  subsequent 
to  the  charge  may  become  important  on  the  question  of  his  credibility  as  a 
witness.     Lea  v.  State  (Tenn.),  29  S.  W.  900. 

*  People  V.  Vane,  13  Wend.  78 ;  People  v.  Gardner,  1  Wheel.  23.  And 
see  People  v.  White,  24  Wend.  520  ;  State  v.  McAllister,  24  Me.  139  ;  State 
V.  Tozier,  49  Me.  404. 

5  Ormsby  v.  People,  53  N.  Y.  472  ;  Donoghoe  v.  People,  6  Park.  Cr,  R. 
120  ;  People  v.  Bodine,  1  Denio,  281  ;  Ackley  v.  People,  9  Barb.  609  ;  State 
V.  Kabrich,  39  la.  277  ;  State  v.  Dockstader,  42  la.  436  ;  State  v.  Upham.  38 
Me.  261  ;  State  v.  Tozier,  49  Me.  404. 

6  People  V.  Evans,  72  Mich.  367  ;  Chick  v.  State,  40  Ind.  263  ;  State  v. 
O'Neal,  29  N.  C.  251  ;  Bennett  v.  State,  86  Ga.  401. 

7  State  V.  Smith,  50  Kan.  69. 

8  Dryman  v.  State,  102  Ala.  130. 


CHAPTER  IX. 

THE   DEFENCE   OF   ALIBI. 

EvroENCE  of  the  absence  of  defendant  from  the  place  of  the 
crime  at  the  time  thereof  is  admitted  to  estabhsh  a  defense.^ 
And  of  all  kinds  of  exculpatory  evidence,  that  of  an  alihi,  if 
clearly  established  by  unsuspected  testimony,  is  the  most  satis- 
factory and  conclusive.^  It  is  not  accurate  to  say  that  the 
defence  of  alihi  tends  merely  to  cast  a  reasonable  doubt  upon 
the  case  made  by  the  people.^  While  the  foregoing  considera- 
tions are  more  or  less  of  an  argumentative  and  inconclusive 
character,  this  defence,  if  the  element  of  time  be  definitely 
and  conclusively  fixed,  and  the  accused  be  shown  to  have  been 
at  some  other  place  at  the  time,  is  absolutely  incompatible 
with,  and  exclusive  of,  the  possibility  of  the  truth  of  the 
charge.  The  jur}"  should  scan  with  care  the  testimony  given 
in  support  of  the  defence  of  an  alihi,  but  the  defence  is  not  to 
be  regarded  as  a  suspicious  one.  It  is,  on  the  contrary,  as 
honorable,  and,  when  clearly  proved,  as  satisfactory,  as  any 
which  the  law  permits.*  Evidence  tending  to  prove  any  fact 
may  sometimes  be  open  to  suspicion.  But  law  is  fixed  and 
uniform.  It  cannot  be  one  thing  in  one  case  and  another  thing 
in  another  case,  as  evidence  may  be.  And  there  is  no  rule  of 
law  which  attaches  a  suspicion  to,  or  fixes  a  blemish  upon, 
evidence  tending  to  prove  an  alili,  any  more  than  upon  evi- 
dence tending  to  prove  any  other  fact.^  It  is,  however,  a 
defence  so  liable  to  abuse  where  a  design  exists  to  practise  a 
fraud  upon  the  State,  and  even  when  that  design  does  not  exist, 
by  ignorant  mistakes  as  to  the  particular  hour  and  lapse  of 
time,  that  it  requires  great  strictness  and  caution  on  the  part 

1  People  V.  Wilson,  85  Cal.  44. 

2  Rea  r.  State,  8  Lea,  356  ;  People  v.  Lee  Gam,  69  Cal.  552. 

8  Ackerson  v.  People,  124  111.  563  ;  Sheehan  v.  People,  131  111.  22. 
*  People  V.  Kelly,  35  Hun,  295.  ^  Albin  v.  State,  63  Ind.  598. 

271 


272  THE  DEFENCE  OF  ALIBI. 

of  the  jury  to  avoid  being-  misled  by  it.^  "  It  must  be 
admitted,"  says  Sir  Michael  Foster,  "  that  mere  alihi  evidence 
lieth  under  a  great  and  general  prejudice,  and  ought  to  be 
heard  with  uncommon  caution ;  but  if  it  appeareth  to  be  founded 
in  truth  it  is  the  best  negative  evidence  that  can  be  offered  : 
it  is  really  positive  evidence,  which  in  the  nature  of  things 
necessarily  implieth  a  negative ;  and  in  many  cases  it  is  the 
only  evidence  which  an  innocent  man  can  offer."  ^  A  charge 
of  assault  with  intent  to  commit  rape  is  one  easily  made,  hard 
to  be  proved,  but  still  harder  to  be  defended  even  by  the  inno- 
cent. But  even  in  a  case  of  this  character  the  court  did  not 
err  in  instructing  the  jury  that  the  defence  of  an  alihi  was 
one  easily  manufactured,  and  that  the  proof  should  be  scanned 
with  care.^  For  when  wholly  false  its  detection  may  be  a  mat- 
ter of  very  great  difficulty. 

It  is  the  exclusive  province  of  the  jury  to  judge  of  the 
weight  of  the  testimony  introduced  to  establish  this  defence.* 
And  in  some  jurisdictions  it  is  held  that  the  defence  of  an  alihi, 
like  any  other  defence,  should  be  left  to  the  jury,  uninfluenced 
by  charges  from  the  court  calculated  to  disparage  or  excite 
prejudice  against  it.^ 

One  case  condemned  an  instruction  which  contained  the 
comment  that  the  defence  is  "  often  presented  by  guilty  persons 
as  well  as  by  innocent  ones,  and  one  in  which  perjury,  mistake, 
and  deception  are  often  committed."  ^  And  in  another  case 
the  judgment  of  the  trial  court  was  reversed  because  the  judge 
had  said  in  his  charge  that  "  testimony  offered  to  establish  an 
alihi  should  be  weighed  with  great  caution  in  connection  with 
all  the  evidence  in  the  case,  because  it  was  a  defence  easily 
fabricated,  and  often  attempted  by  contrivance  or  perjury," 
and  this  though,  it  was  added,  that  when  fully  and  satisfactorily 
established  by  the  evidence  to  the  satisfaction  of  the  jury,  it 
was  a  good  and  complete  legal  defence.  For,  it  was  said,  the 
defendant  is  not  required,  in  any  phase  of  any  criminal  case,  to 
prove  his  defence  to  the  satisfaction  of  the  jury,  but  only  to 
raise  a  reasonable  doubt.''     And  where  there  was  credible  evi- 

1  Rea  V.  State,  8  Lea,  356  ;  People  v.  Lee  Gam,  69  Cal.  552. 

2  Foster's  C.  L.,  ut  supra,  368.  And  see  the  observations  of  Mr.  Baron 
George,  in  Rex  v.  Brennan,  30  St.  Tr.  79. 

3  State  V.  Blunt,  59  la.  648.  *  State  v.  Cliee  Gong,  16  Ore.  534. 
5  Simmons  v.  State,  61  Miss.  843.  ^  State  v.  Chee  Gong,  supra. 

7  Dawson  v.  State,  63  Miss.  241. 


THE  DEFENCE  OF  ALIBI.  273 

dence  in  support  of  the  defence  of  an  alili  a  charge  susceptible 
of  the  construction  that  it  was  a  circumstance  to  the  defend- 
ant's prejudice  if  his  witnesses  perjured  themselves  to  establish 
the  alibi,  was  held  erroneous.^ 

It  is  obviously  essential  to  the  proof  of  an  alibi  that  it 
should  cover  and  account  for  the  whole  of  the  time  of  the 
transaction  in  question,^  or,  at  least,  for  so  much  of  it  as  to 
render  it  impossible  that  the  prisoner  could  have  committed 
the  imputed  act.  The  proof  must  preclude  the  possibility  of 
the  prisoner's  presence  at  the  tune  and  place  of  the  commission 
of  the  crune.^  It  is  not  enough  that  it  renders  his  guilt 
improbable  merely,  and  if  the  time  is  not  exactly  fixed,  and 
the  place  at  which  the  accused  is  alleged  by  the  defence  to 
have  been  is  not  far  off,  the  question  then  becomes  one  of 
probabilities.  The  court,  therefore,  in  one  case  refused  to 
direct  an  acquittal  on  the  ground  that  the  defendant  was 
seen,  about  two  hours  before  the  commission  of  the  crime,  at 
some  distance  from  the  place  thereof,  when  the  distance  did 
not  appear.* 

And  in  another  case  a  defence  of  an  alibi  was  disregarded, 
because  all  that  the  prisoners  offered  to  prove  was  that  they 
were  in  bed  on  the  night  in  question  at  twelve  o'clock,  and 
w^ere  found  in  bed  next  morning,  after  the  arson  with  which 
they  were  charged  had  taken  place,  the  distance  being  two 
miles,  so  that  they  might  have  risen,  committed  the  deed,  and 
returned  to  bed.^  In  a  recent  case  it  was  attempted  to  prove 
an  alibi,  but  it  was  only  shoA\Ti  that  several  days  before  the 
murder  the  defendant  was  seen  at  a  point  70  miles  distant 
from  the  scene  of  the  crime.  This  was  clearlv  insufficient, 
especially  in  view  of  the  fact  that  there  was  railwa}^  com- 
munication between  the  two  points.^  On  the  trial  of  a  man 
for  the  murder  of  a  young  woman  under  circumstances  of  the 
strongest  adverse  presumption,  the  proof  was  that  the  deceased 
had  been  murdered  at  her  father's  cottage  in  tlie  forenoon  of 
the  day  in  question,  and  the  prisoner  alleged  that  he  was  at 
work  the  whole  of  that  day  with  his  fellow-laborers  at  a 

1  Prince  V.  State,  100  Ala.  144. 

2  MUler  V.  People,  39  111.  457  ;  Aneals  v.  People.  134  111.  401  ;  Wisdom  v. 
People,  11  Colo.  170  ;  Murphy  v.  State,  31  Fla.  166. 

8  Briceland  v.  Com.,  74  Pa.  St.  463  ;  Miller  v.  People,  supra. 
^  Burger  v.  State,  83  Ala.  36.  s  Rgx  v.  Fi-aser,  Alison's  Princ.  625. 

6  McGill  V.  State,  25  Tex.  App.  499. 
18 


274  THE  DEFENCE  OF  ALIBI. 

distance  from  the  cottage  ;  but  it  turned  out  that  he  had  been 
absent  from  his  work  about  half  an  hour,  an  interval  suffi- 
ciently long  to  have  enabled  him  to  reach  the  cottage,  commit 
the  murder,  and  rejoin  his  fellow- workmen.  He  was  convicted, 
and  before  his  execution  confessed  his  guilt.^ 

The  credibility  of  an  alibi  is  greatly  strengthened  if  it  be 
set  up  at  the  moment  when  the  accusation  is  first  made,  and 
be  consistently  maintained  throughout  the  subsequent  pro- 
ceedings.^ These  conditions  were  remarkably  fulfilled  in  the 
memorable  case  of  Abraham  Thornton,  of  which  a  full  account 
wiU  be  given  hereafter.  To  all  appearance  the  guilt  of  the 
prisoner  was  the  necessary  conclusion  from  the  supposed 
inculpatory  facts,  and  yet  he  had  been  seen  by  a  number  of 
independent  and  unimpeachable  witnesses  at  such  a  distance 
from  the  scene  of  the  alleged  murder,  at  the  very  time  when 
it  must  have  been  committed,  if  at  all,  as  to  render  it  phys- 
ically impossible  that  the  deceased  could  have  been  murdered 
by  him ;  and  all  the  facts  supposed  to  have  been  the  con- 
clusive indications  of  guilt  were  satisfactorily  explained  by 
collateral  circumstances,  and  by  a  different  hypothesis.^ 

On  the  other  hand,  the  failure,  unexplained,  to  assert  this 
defence  when  it  could  first  be  made,  and,  if  true,  would  be 
conclusive,  is  always  a  most  suspicious  circumstance ;  *  or  if 
nothing  happened  immediately  after  the  transaction  to  lead 
the  witnesses  to  watch  so  as  to  be  accurate  in  the  hour  or  time 
to  which  they  speak,  even  supposing  them  to  depose  under  no 
improper  bias  or  influence ;  ^  or  if  having  been  once  resorted 
to,  a  different  and  inconsistent  defence  is  afterwards  set  up. 

There  are  many  other  sources  of  fallacy  connected  with  this 
particular  defence  ;  such  as  the  possible  difference  of  clocks  ;  ^ 
or  the  fraudulent  alteration  of  them  to  tally  with  other  facts ; 
as  where  one  of  the  perpetrators  of  a  murder  hastened  home, 
put  back  the  clock  two  hours,  and  went  to  bed,  and  shortly 

1  Rex  V.  Richardson,  infra.  ^  Dean  v.  Com.,  32  Grat.  912. 

2  Rex  V.  Thornton,  infra.  And  see  Rex  v.  Canning.  19  St.  Tr.  283,  where 
the  prosecutrix  of  a  capital  charge  was  convicted  of  perjury  on  the  evidence 
of  thirty-eight  witnesses  who  proved  an  alibi. 

*  Dean  v.  Com.,  32  Grat.  912. 

6  Per  Mr.  Justice  Le  Blanc,  in  Rex  v.  Mellor  and  others,  31  St.  Tr.  1032. 
And  see  Rex  v.  Haigh,  Id.  1118;  and  the  observations  of  Shaw,  C.  J.,  in 
Webster's  Case,  5  Cush.  295. 

6  Rex  V.  Schofield,  31  St.  Tr.  1063  ;  Rex  v.  Mellor,  Id.  1027. 


THE  DEFENCE  OF  ALIBI.  275 

afterwards  awoke  his  servant,  and  told  her  to  go  downstairs 
and  see  what  was  the  time,  which  she  did,  not  knowing  that  the 
clock  had  been  tampered  with ;  so  that  her  testimony  led  to 
his  acquittal.^  Yery  often,  too,  without  doubt,  a  mistake  is 
made  as  to  the  person  from  want  of  an  opportunity  of  accurate 
observation,  or  other  causes  of  misconception.  In  a  recent 
case,  a  trial  for  uttering  and  publishing  a  forged  note,  the 
defence  was  an  alili.  The  person  on  whom  the  note  was 
passed,  one  D.,  identified  the  defendant  as  the  person  who  sold 
it  to  him ;  two  witnesses  testified  that  they  saw  defendant 
Avith  D.  on  the  date  mentioned ;  and  three  other  witnesses 
said  that  he  was  in  the  vicinity  of  the  town  where  the  note 
was  passed  on  that  day  and  for  several  days  previous.  But 
the  defendant  introduced  fifteen  witnesses  who  testified  to 
the  presence  of  defendant  in  a  distant  county  on  the  day  in 
question  and  for  several  days  prior  and  subsequent  to  that  date.^ 

A  group  of  irrelevant  facts  is  sometimes  artfully  arranged 
so  as  to  give  an  appearance  of  reality  and  coherence  to  the 
defence,  the  facts  being  true  in  themselves,  but  fraudulently 
referred  to  the  critical  day  or  time,  instead  of  to  the  real  time 
of  their  occurrence  ;  ^  or  such  a  misstatement  may  take  place 
by  unintentional  mistake.* 

In  a  celebrated  case,  where  several  persons  were  tried  for 
an  atrocious  murder,  it  appears  to  have  been  a  part  of  the  plot 
for  each  of  the  prisoners  to  sleep  on  the  night  of  the  murder 
with  some  one  who  could  testify  to  an  alihi.  One  of  the 
murderers  had  requested  a  man  to  sleep  in  his  house  ;  but  the 
witness  stated  that  he  might  have  been  absent  while  he  was 
asleep.  Another  of  them  went  several  miles  from  the  place  of 
the  murder  to  sleep,  and  the  person  in  whose  house  he  stayed 
had  no  doubt  that  he  was  within  doors  the  whole  night. 
Two  others  of  them  went  to  a  tavern  several  miles  from  the 
scene  of  the  murder,  and  went  to  bed  together ;  but  in  the 
night  one  of  them  was  discovered  leaving  the  house,  although 
he  evidently  wished  to  be  unnoticed  ;  and  he  was  absent  so 
long,  not  returning  until  the  morning,  as  to  alarm  the  tavern- 

'  Rex  V.  Hai-d}'.  See  the  "  Times  "  newspaper  of  the  38th  November,  1857, 
where  it  is  stated  that  one  of  the  murderers  made  a  circumstantial  confes- 
sion on  his  death-bed. 

2  State  V.  Beasley,  50  N.  W.  570. 

2  See  a  case  of  this  kind  in  8  Lond.  Med.  Gaz.  36. 

*  Rex  V.  Baines,  31  St.  Tr.  1091  ;  Rex  v.  Haigh,  ut  supra. 


276  THE  DEFENCE  OF  ALIBI. 

keeper,  who  with  his  wife  made  diligent  search  for  him  in  the 
neighborhood,  but  his  bed-fellow  manifested  no  anxiety  or 
alarm,  and  got  up  and  assisted  in  the  search.^ 

This  defence  is  especially  easy  of  fabrication  or  mistake  in 
regard  to  the  essential  element  of  time,  where  a  few  minutes 
may  be  of  vital  moment.  Honest  witnesses  sometimes  mistake 
dates  and  periods  of  time;^  but  the  unblushing  effrontery 
with  which  witnesses  sometimes  present  themselves  to  speak 
to  time,  without  regard  to  plausibility  or  consistency,  is  truly 
surprising.  On  a  trial  for  murder,  two  witnesses  who  were 
called  to  support  a  defence  of  an  cdihi,  swore  that  they  were 
able  to  speak  positively  to  the  time,  from  having  looked  at  a 
clock  ;  but  upon  being  required  by  the  counsel  for  the  prose- 
cution to  tell  the  time  by  the  clock  in  court,  after  some 
hesitation  they  admitted  that  they  were  unable  to  do  so.^ 

In  another  case  it  was  elicited  in  cross-examination  of  a 
woman  with  whom  the  prisoner  lived,  that  on  his  return  home 
after  an  absence  of  an  hour,  during  which  he  committed  two 
murders,  he  told  her  to  say  that  he  had  not  been  out  more 
than  ten  minutes.^ 

It  is  a  circumstance  which  will  tell  against  the  accused  if 
pertinent  and  material  evidence  by  which  an  alihi  might,  if 
true,  have  been  supported,  is  withheld.^  A  mere  unsuccessful 
attempt  to  prove  an  alihi  is  not  a  circumstance  of  great  weight 
against  the  prisoner.^  Failure  in  this  proof  should  have  no 
greater  weight  to  convince  a  jury  of  the  guilt  of  a  prisoner  at- 
tempting it  than  the  failure  to  prove  any  other  important  item 
of  defence,  A  prisoner  is  entitled  to  rely  on  the  facts  in 
his  favor,  that  he  may  suppose  he  is  able  to  prove,  and  if 
he  is  so  unfortunate  as  to  fail  in  his  proof,  it  should  not, 
generally  speaking,  operate  to  his  prejudice.'  And  an 
instruction  in  a  criminal  case  that  the  prisoner  has  "at- 
tempted "  to  set  up  an  alihi  is  erroneous,  as  tending  to 
intimate  to  the  jury  that  the  effort  to  prove  an  alihi  amounted 
to  nothing  more  than  an  attempt.^  "  Because  susceptible  of  easy 

1  Case  of  Bauer  et  al,  2  Chandl.  Am.  Cr.  Tr.  356. 

2  People  V.  Wong  Ah  Foo,  G9  Cal.  180. 

8  Reg.  V.  Cane  and  otliers,  C.  C.  C,  20th  of  June,  1851. 
4  Reg.  V.  Rush,  Norfolk  Spr.  Ass.,  18-19. 

^  Rex  1'.  Haigli  and  others,  ut  supra;  Rex  i?.  Hunter  and  others,  Rep., 
ut  supra,  365.  e  People  v.  Malaspina,  57  Cal.  628. 

T  Miller  v.  People,  39  111.  457.  «  Miles  v.  State,  98  Ga.  117. 


THE  DEFENCE  OF  ALIBI.  277 

fabrication  and  often  attempted  to  be  sustained  by  perjury, 
whereby  the  accused  endeavors  to  break  the  net- work  of  facts 
and  circumstances  surely  bringing  him  to  conviction  and  punish- 
ment, the  proof  of  an  alihi  is,  and  should  be,  subjected  to  a 
careful  scrutiny ;  but  it  is  an  error  to  assume  that  the  law 
looks  upon  such  attempt  with  suspicion.  A  general  prejudice 
against  such  attempt  has  resulted  from  the  unquestioned  fact 
that  an  alibi  is  often  forged,  constituting  an  artifice  or  con- 
trivance to  shield  the  guilty.  But  being  a  defence  which  may 
be  lawfully  made,  and  which  in  legal  contemplation  is  of  the 
same  form  as  other  lawful  defences,  there  can  be  no  rule  of  law 
founded  on  logic  or  principle,  common  sense  or  justice,  which 
recognizes  a  distinction  between  the  consequent  weight  of  an 
unsuccessful  attempt  to  establish  an  alibi.,  and  that  of  an  unsuc- 
cessful attempt  to  prove  any  other  material  fact  in  defence."  ^ 
"Where  the  attempt  to  prove  the  alibi  fails,  the  evidence  offered 
in  support  of  it  may  nevertheless  be  considered  by  the  jury  as 
otherwise  affecting  the  case.^ 

But  if  the  defence  is  resorted  to  fraudulently,^  or  is  detected 
to  be  the  result  of  after-thought  or  contrivance,  the  attempt  to 
set  it  up  usually  recoils  with  fatal  effect  upon  the  party  who 
asserts  it ;  and,  in  the  language  of  Mr.  Baron  Daly,  "  amounts 
to  a  conviction. "  *  Where  the  defendant  attempted  to  prove 
an  alihi,  but  the  circumstances  pointed  conclusively  to  the  fact 
that  he  was  at  the  scene  of  the  crime  when  it  was  committed, 
the  court  said  that  the  prisoner's  denial  was  against  him.^  An 
indictment  for  murder  was  tried  five  times.  On  each  of  the 
first  four  trials  a  witness,  the  brother-in-law  of  the  defendant, 
gave  testimony  which  established  an  alibi,  but  on  the  fifth  trial 
this  witness  recanted  his  former  statements  and  testified  that 
on  the  evening  of  the  homicide  the  defendant  came  to  the 
house  of  the  witness  and  confessed  the  murder.  This  evidence, 
together  with  the  circumstances  in  the  case,  was  held  sufficient 
for  conviction.^ 

"  The  truth  of  this  sort  of  defence,"  said  Mr.  Baron  George," 

1  See  opinion  of  the  court  in  Allbritton  v.  State,  94  Ala.  76,  See  further 
on  this  point,  supra.  2  Xoler  v.  State,  16  Ohio  St.  583. 

3  State  V.  Collins,  20  la.  85.  «  In  Rex  v.  Killan,  20  St.  Tr.  1085. 

*  Coleman  v.  State,  26  Fla.  61.  And  see  Com.  v.  McMahon,  145  Pa.  413  ; 
State  V.  Dimmitt,  88  la.  551  ;  People  v.  Johnson,  140  N.  Y.  350. 

6  Moody  V.  State,  37  Tex.  App.  287.       '  In  Rex  v.  Brennan,  30  St.  Tr.  79. 


2Y8  THE  DEFENCE  OF  ALIBI. 

"  is  not  always  to  be  ascertained  by  the  direct  testimony  of  the 
witnesses  called  to  prove  it.  Several  witnesses  are  seldom  pro- 
duced in  such  cases  without  its  being  known  that  they  agree 
with  each  other  in  the  substantial  and  principal  facts  thej^  are 
to  relate  ;  and  as  in  general  it  is  not  to  be  expected  that  a  pros- 
ecutor should  come  with  evidence  prepared  to  meet  this  sort 
of  defence,  the  usual  test  of  its  truth  or  of  its  falsehood,  where 
they  are  unknown  to  the  jury,  is  a  cross-examination  of  the 
witnesses,  kept  asunder,  and  fairly  conducted  under  the  eye 
and  observation  of  the  jury  ;  and  here  differences  or  contradic- 
tions, otherwise  trivial,  become  important  in  showing  the  truth 
or  falsehood  of  such  narrative."  In  such  circumstances,  if  the 
story  be  a  fabrication,  it  is  obviously  far  more  easy  for  the  wit- 
nesses to  agree  on  the  more  general  fact  of  the  prisoner's  pres- 
ence at  the  time  and  place  referred  to,  than  on  the  minute 
surrounding  particulars.^ 

The  foregoing  examples  suffice  to  illustrate  the  subject  of 
exculpatory  presumptions ;  but  it  is  obvious  that  as  inculpa- 
tory facts  are  infinitely  diversified,  exculpatory  facts  must 
admit  of  the  same  extent  of  variety,  and  that  they  may  be 
of  every  degree  of  force.  In  all  such  cases  of  conflicting 
presumptions  it  is  the  duty  of  the  jury,  with  the  assistance 
of  the  court,  to  weigh  and  estimate  the  force  of  each  several 
circumstance  of  presumption,  and  to  act  upon  what  appear  to 
be  the  superior  probabilities  of  the  case ;  and  if  there  be  not 
a  decided  preponderance  of  evidence  to  establish  the  guilt  of 
the  party,  to  take  the  safe  and  just  course,  by  abstaining  from 
pronouncing  a  verdict  of  guilty,  where  the  necessary  light  and 
knowledge  to  justify  them  in  so  doing  with  the  full  assurance 
of  moral  certainty  is  unattainable.^ 

^  Reg.  V.  Hunter,  Rep.,  ut  supra,  365.        2  Mittermaier,  ut  supra,  ch.  56. 


PART  IV. 

RULES  OF  INDUCTION  SPECIALLY  TO  BE  OB- 
SERVED IN  CASES  OF  CIRCUMSTANTIAL 
EVIDENCE. 


INTRODUCTORY  REMARKS. 

All  reasoning  concerning  human  conduct  is  essentially  a 
process  of  induction,  of  which  it  is  the  object,  by  means  of 
generalizations  founded  upon  a  knowledge  of  the  faculties,  emo- 
tions, and  laws  of  the  mind,  to  discover  the  moral  qualities 
and  causal  origin  of  the  voluntary  actions  of  our  fellow-men  ; 
whence  it  follows  that  the  rules  for  the  conduct  of  inductive 
inquiry  belong  formally  to  the  province  of  Logic,  or  the  science 
of  the  laws  of  thought.  The  rules  of  evidence  are,  therefore, 
a  selection  of  maxims  tacitly  assumed  and  acted  upon  by  all 
men  in  the  ordinary  affairs  of  life,  and  recognized  by  philosoph- 
ical wisdom  and  judicial  experience  as  the  best  means  of  dis- 
covering truth.  The  purpose  of  this  essay  requires  the  enumer- 
ation only  of  such  few  leading  rules  of  evidence  as  are  of  special, 
though  not  of  exclusive  application,  to  the  particular  subject- 
matter  of  this  treatise.^ 

^  Mittermaier,  ut  supra,  c.  57. 


CHAPTER  I. 

PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE. 

The  facts  alleged  as  the  basis  of  any  legal  inference  Tnust  he 
clearly  proved^  and  indvhitahly  connected  with  the  factum  pro- 
bandum. 

No  conclusion  is  reliable  which  is  drawn  from  premises 
that  are  uncertain.  Whenever  circumstantial  evidence  is 
relied  upon  to  prove  a  fact,  the  circumstances  must  be  proved 
and  not  themselves  presumed.^  A  presumption  which  the  jury- 
is  to  draw  is  not  a  circumstance  in  proof,  and  is  therefore  not 
itself  a  legitimate  foundation  for  a  presumption.  Let  the  prin- 
cipal fact  be  what  it  may,  the  facts  relied  upon  must  be  proved 
in  the  strictest  sense  of  the  word.^  No  safe  conclusion  can  be 
deduced  from  circumstantial  evidence  if  it  be  left  reasonable  to 
suppose  that  the  circumstances  themselves  are  not  proved.  It 
may  be  a  very  significant  circumstance  that  a  footprint  is 
found ;  but  if  the  facts  are  such  as  to  render  it  reasonable  that 
there  was  no  footprint,  the  circumstance  that  some  crazy  man 
had  said  so  would  be  of  no  importance.^  The  jury  should  not 
indulge  in  the  supposition  of  facts  not  proven.* 

This  rule  is  an  indispensable  condition  of  all  sound  induction  ; 
and  its  object  is,  by  proper  rejections  and  exclusions,  and  after 
as  many  negations  as  are  necessary,^  to  verify  facts  and  clear 
them  from  all  ambiguit}^,  so  that  they  may  become  the  premises 
of  logical  argument  and  reasoning.  In  moral  investigations 
the  facts  are  generally  more  obscurely  developed  than  Avhen 
physical  phenomena  form  the  subjects  of  inquiry  ;  and  they  are 

1  Douglas  V.  Mitchell,  35  Pa.  St.  440  ;  Manning  v.  John  Hancock  Mut.  L. 
Ins.  Co.,  100  U.  S.  693. 

2  Jernigan  v.  State,  10  Tex.  Crim.  App.  546  ;  Taylor  v.  State,  9  Id.  100  ; 
Ward  V.  State,  10  Id.  298.  a  Worth  v.  Norton,  83  Tex.  193. 

*  Ray  V.  State,  50  Ala.  104 ;  People  v.  Brannon,  47  Cal.  96  ;  White  v. 
State,  86  Tex.  347  ;  Earle  v.  People,  73  111.  329  ;  Walbridge  v.  State,  13  Neb. 
286. 

6  Nov.  Org.  lib.  i.  ;  Aphor.  Ev.  2  ;  Mill's  Log.  b.  t,  c.  3  &  3. 
280 


PROOF  or  THE  FACTS  ALLEGED  IS  REQUISITE.  281 

frequently  blended  with  foreign  and  irrelevant  circumstances, 
so  that  the  establishment  of  their  connection  with  i\iQfactiovi 
jyrohandum  becomes  matter  of  considerable  difficulty.  Ko 
weight,  therefore,  must  be  attached  to  circumstances  which, 
however  they  may  excite  conjecture,  do  not  warrant  belief.^ 

In  a  case  resting  on  circumstantial  evidence,  the  party  upon 
whom  the  burden  of  proof  rests  is  bound  to  prove  every  fact 
essential  to  the  conclusion  of  guilt  in  the  same  manner  and  to 
the  same  extent  as  if  the  Avhole  issue  rested  on  each  individual 
and  essential  circumstance.^ 

Each  fact  necessary  to  the  conclusion  sought  to  be  estabKshed 
must  be  proved  beyond  reasonable  doubt.^ 

If  the  jury  in  making  up  their  minds  from  circumstantial 
evidence  have  a  rational  doubt  as  to  the  existence  of  any  one 
of  the  material  circumstances  attempted  to  be  proved,  that 
circumstance  ought  not  to  have  any  influence  with  them  in 
forming  their  opinion  respecting  the  guilt  or  innocence  of  the 
accused.  In  other  words  they  ought  "  to  discard  such  circum- 
stance in  making  up  their  verdict."  * 

1  See  on  this  point  Burr.  Ciic.  Ev.  pp.  136-138. 

2  Scott  V.  State,  19  Tex.  Grim.  App.  325  ;  Harrison  v.  State,  6  Id.  42 ; 
State  V.  Glass,  5  Ore.  73. 

8  Com.  V.  Webster,  supra ;  State  v.  Glass,  5  Ore.  73  ;  People  v.  Phipps,  39 
Cal.  326;  Black  v.  State,  1  Tex.  Crim.  App.  368;  Gallagher  v.  State,  28 
Tex.  Crim.  App.  247  ;  Hawkins  v.  State  (Tex.),  12  S.  W.  490  ;  Cranch  v. 
State  (Tex.),  12  S.  W.  491  ;  Shipp.  v.  Com.  (Va.),  14  Va.  L.  J.  176  ;  10  S.  E. 
1065  ;  Riley  v.  State,  88  Ala.  193  ;  Dick  v.  State,  87  Ala.  61  ;  Perry  v.  State, 
87  Ala.  30  ;  State  v.  Bush,  122  Ind.  42 :  State  v.  Donahoe,  78  Iowa,  486 ; 
People  V.  Hare,  57  Mich.  505  ;  Johnson  v.  State,  27  Neb.  687. 

The  following  observations  are  extracted  from  the  opinion  of  the  court  in 
People  V.  Aiken,  66  Mich.  460  : 

"  The  verdict  of  guilty  in  a  criminal  case  resting  upon  circumstantial 
evidence  is  built  upon  a  series  of  facts  connected  logicallj-  together,  and 
one  fact  succeeding  another  in  a  certain  order  ;  one  fact  resting  or  depend- 
ing upon  another  as  a  result  of  the  preceding.  These  material  and  essential 
facts  necessary  to  convict,  following  one  another  and  each  adding  strength 
and  conviction  to  the  other  and  the  whole,  and  which  as  a  whole  complete 
a  perfect  and  irresistible  chain,  must  each  and  every  one  be  established 
and  proved.  Who  can  say  that  this  chain  so  formed  is  a  perfect  and  com- 
plete chain  to  a  moral  certainty,  or  beyond  a  reasonable  doubt,  if  there 
be  a  want  of  such  moral  certainty  or  a  reasonable  doubt  as  to  the  exist- 
ence of  one  of  these  links  without  which  the  chain  is  broken  and  incom- 
plete? Each  necessary  link,  each  and  every  material  and  necessary  fact 
upon  which  a  conviction  depends,  must  be  proved  beyond  a  reasonable 
doubt." 

*  See  opinion  of  Blackford,  J.,  in  Sumner  v.  State,  5  Blackf.  579. 


282  PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE. 

It  is  not,  however,  necessary  that  an  immaterial  fact  should 
be  so  established.  ^ 

There  is  no  objection  to  an  instruction  which  holds  that 
the  rule  requiring  proof  beyond  a  reasonable  doubt  applies  only 
to  the  material  allegations  of  the  indictment,  but  has  no 
application  to  those  mere  evidentiary  facts  which  the  testimony 
of  the  witnesses  may  tend  to  establish.^  It  is  sometimes  said 
that  each  fact  relied  tipon  to  prove  the  defendant's  guilt  ought 
to  be  established  beyond  a  reasonable  doubt.  But  this  form 
of  instruction  ought  to  be  avoided. 

An  alleged  circumstance  may  be  relied  upon  in  the  chain 
of  circumstances  by  which  the  guilt  of  the  accused  is  sought 
to  be  established  or  the  conclusion  reached,  and  yet  not  be 
essential  to  that  conclusion.  A  circumstance  may  be  relied 
upon  by  the  prosecution  as  tending  to  prove  facts  from  which 
the  inference  of  guilt  is  to  be  drawn,  and  yet  it  may  not  be  one 
of  the  circumstances  from  which  the  conclusion  is  drawn.  The 
ultimate  conclusion  of  guilt  is  drawn  from  certain  essential 
facts,  from  the  existence  of  which  the  mind  is  logically  and 
irresistibly  forced  to  infer  the  main  fact  to  be  proved.  If  one 
of  these  essential  facts  is  wanting,  the  mind  fails  to  reach  the 
conclusion.  A  man  is  accused  of  the  murder  of  his  wife  by  the 
administration  of  a  deadly  poison.  All  the  circumstances  of 
the  case  point  with  almost  absolute  certainty  to  his  guilt.  The 
jury  are  satisfied  of  it  beyond  a  reasonable  doubt.  He  is 
proven  to  be  devoid  of  affection  for  her.  He  has  been  seen  to 
cruelly  maltreat  her.  His  conduct  towards  another  woman 
establishes  the  fact  that  she  has  supplanted  his  Avife  in  his 
affections.  The  poison  has  been  found  in  the  body  of  the 
deceased  in  a  sufficient  quantity  to  produce  death.  He  is 
shown  to  have  recently  purchased  the  same  kind  of  poison  for 
the  alleged  purpose  of  killing  a  family  dog.  It  is  shown  he 
had  no  dog.  He  has  but  recently  caused  the  life  of  his  wife  to 
be  insured.  He  has  been  heard  to  make  threats  and  insinua- 
tions which,  in  the  light  of  subsequent  events,  show  that  he 
expected  her  death  at  an  early  day.  A  witness  is  caUed  for 
the  prosecution  who  testifies  that  at  a  particular  time  he  saw 
the  accused  in  the  company  of  the  other  woman  under  circum- 
stances of  very  questionable  propriety,  and  which,  if  believed, 

1  Early  v.  State,  9  Tex.  Crim.  App.  476. 

2  Jamison  v.  People,  145  lU.  357, 


PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE.  283 

would  establish  illicit  intercourse  between  them.  This  last 
fact  is  relied,  upon  as  a  link  in  the  chain  of  circumstances  to 
establish  the  fact  of  his  guilt  of  the  crime  charged.  The  jury 
are  fully  satisfied  of  his  guilt,  but  from  the  conduct  or  de- 
meanor of  the  witness,  or  for  some  other  cause,  do  not  believe 
the  story  of  the  illicit  intercourse.  Must  they  therefore  find 
the  accused  not  guilty  ?  Clearly  not.  That  circumstance, 
though  relied  on,  should  be  disregarded. ^ 

Occurrences  may  be  mysterious  and  justify  even  vehement 
suspicion,  and  yet  the  supposed  connection  between  them  may 
be  but  imaginary,  and  their  co-  existence  indicative  of  accidental 
concurrence  merely,  and  not  of  mutual  correlation. 

"Where  the  only  evidence  tending  to  connect  the  defendant 
with  the  theft  of  the  alleged  stolen  animal  was  the  fact  that  a 
brand  on  the  animal  had  been  altered — by  whom  did  not 
appear — to  make  it  resemble  a  brand  claimed  by  defendant : 
this  was  held  insufficient  for  conviction.^ 

"  Where  there  is  nothing  but  the  evidence  of  circumstances 
to  guide  you,"  said  Mr.  Justice  Bailey,  "  those  circumstances 
ought  to  be  closely  and  necessarily  connected,  and  to  be  made 
as  clear  as  if  there  were  absolute  and  positive  proof."  ^ 

Every  circumstance,  therefore,  which  is  not  clearly  shown 
to  be  really  connected  as  its  correlative  with  the  hypothesis 
it  is  supposed  to  support,  must  be  rejected  from  the  judicial 
balance ;  in  other  words,  it  must  be  distinctly  established  that 
there  exists  between  the  factum  prohandum  and  the  facts 
which  are  adduced  in  proof  of  it,  a  real  connection,  either 
evident  and  necessary,  or  so  highly  probable  as  to  admit  of 
no  other  reasonable  explanation.^ 

The  following  cases  will  serve  to  manifest  the  dangerous 
consequences  which  may  ensue  from  the  disregard  of  this  most 
salutary  cautionary  rule : 

Two  brothers-in-law,  Joseph  Downing  and  Samuel  White- 
house,  met  by  appointment  to  shoot,  and  afterwards  to  look 
at  an  estate,  which  on  the  death  of  Whitehouse's  wife  without 
issue  would  devolve  on  Downing.  They  arrived  at  the  place 
of  meeting  on  horseback.  Downing  carrying  a  gun-barrel  and 

1  See  opinion  of  the  court  in  Bradshaw  v.  State,  17  Neb.  147. 

2  Schaubert  v.  State,  28  Tex.  Grim.  App.  222 

*  Rex  V.  Downint^.  Salop  Summer  Ass.,  1822,  infra. 

*  Mittermaier,  ut  supra,  ch.  55,  57. 


284  PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE. 

leading  a  colt.  After  the  business  of  the  day,  and  drinking 
together  some  hours,  they  set  out  to  return  home.  Downing 
leading  his  colt  as  in  the  morning.  Their  way  led  through  a 
gate  opening  from  the  turnpike-road,  and  thence  by  a  narrow 
track  through  a  wood.  On  arriving  at  the  gate.  Downing 
discovered  that  he  had  forgotten  his  gun-barrel ;  and  a  man 
who  accompanied  them  to  open  the  gate  went  back  for  it, 
returning  in  about  three  minutes.  In  the  meantime  White- 
house  had  gone  on  in  advance  ;  and  the  prisoner  having  received 
his  gun-barrel,  followed  in  the  same  direction.  S  hortly  after 
wards  Whitehouse  Avas  found  lying  on  the  ground  in  the  wood, 
at  a  part  where  the  track  widened,  about  600  yards  from  the 
gate,  with  his  hat  off,  and  insensible  from  several  wounds  in  the 
head,  one  of  which  had  fractured  his  skull.  While  the  person  by 
whom  he  was  discovered  went  for  assistance,  the  deceased  had 
been  turned  over  and  robbed  of  his  watch  and  money.  About 
the  same  time  Downing  was  seen  in  advance  of  the  spot  where 
the  deceased  lay,  proceeding  homeward  and  leading  his  colt ; 
and  a  few  minutes  afterwards  two  men  were  seen  following  in 
the  same  direction.  Suspicion  attached  to  Downing,  partly 
from  his  interest  in  the  estate  enjoyed  by  the  deceased,  and  he 
was  put  upon  his  trial  for  this  supposed  murder ;  but  it  was 
clear  that  he  had  no  motive  on  that  account  to  kill  the  deceased, 
as  the  estate  was  not  to  come  to  him  until  after  failure  of 
issue  of  the  deceased's  wife,  to  whom  he  had  been  married 
several  years  without  having  had  children ;  so  that  it  was  his 
interest  that  the  way  should  not  be  open  to  a  second  marriage. 
That  the  deceased  had  been  murdered  at  all  was  a  highly 
improbable  conjecture,  and  it  was  far  more  probable  that  he 
had  fallen  from  his  horse  and  received  a  kick,  especially  as  his 
hat  bore  no  marks  of  injury,  so  that  it  had  probably  fallen  off 
before  the  infliction  of  the  wounds.  That  the  deceased,  if 
murdered  at  all,  had  been  murdered  by  the  prisoner  was  in  the 
highest  degree  improbable,  considering  how  both  his  hands 
must  have  been  employed,  nor  was  there  any  evidence  that  the 
deceased  had  been  robbed  by  the  prisoner.  It  thus  appeared 
that  these  accumulated  circumstances,  of  supposed  inculpatory 
presumptions,  were  really  irrelevant  and  unconnected  with 
any  corpus  delicti}     The  prisoner  was   acquitted ;  and  it  is 

-  Rex  V.  Downing,  Salop  Sum.  Ass.,  1822,  coram  Mr  Justice  Bayley. 


PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE.  285 

instructive  that  about  twelve  months  afterwards  the  mystery 
of  the  robbery,  the  only  real  circumstance  of  suspicion,  was 
cleared  up.  A  man  was  apprehended  upon  offering  the 
deceased's  watch  for  sale,  and  brought  to  trial  for  the  theft  of 
it,  and  acquitted,  the  judge  thinking  that  he  ought  not  to  be 
called  upon,  at  so  distant  a  period,  to  account  for  the  posses- 
sion of  the  deceased's  property,  which  he  might  have  purchased, 
or  otherwise  fairly  acquired,  without  being  able  to  prove  it  by 
evidence.  The  accused,  when  no  longer  in  danger,  acknowl 
edged  that  he  had  robbed  the  deceased,  whom  he  found  lying- 
drunk  on  the  road,  as  he  believed  ;  but  that  he  had  concealed 
the  watch,  on  learning  that  it  was  supposed  that  he  had  been 
murdered,  in  order  to  prevent  suspicion  from  attaching  to 
himself. 

A  farmer  was  tried  under  the  special  commission  for  Wilt- 
shire, in  January,  1831,  upon  an  indictment  which  charged  him 
with  having  feloniously  sent  a  threatening  letter,  which  was 
alleged  to  have  been  written  by  him.  That  the  letter  was  in 
the  prisoner's  handwriting  was  positively  deposed  by  witnesses 
who  had  had  ample  means  of  becoming  acquainted  with  it, 
while  the  contrary  was  as  positively  deposed  on  the  part  of  the 
prisoner  by  numerous  witnesses  equally  competent  to  speak  to 
the  fact.  But  the  scale  appears  to  have  been  turned  by  the 
circumstance  that  the  letter  in  question,  and  two  others  of  the 
same  kind  to  other  persons,  together  with  a  scrap  of  paper 
found  in  the  prisoner's  bureau,  had  formed  one  sheet  of  paper  ; 
the  ragged  edges  of  the  different  portions  exactly  fitting  each 
other,  and  the  water-mark  name  of  the  maker,  which  was 
divided  into  three  parts,  being  perfect  when  the  portions  of 
paper  were  united.  The  jury  found  the  prisoner  guilty,  and  he 
was  sentenced  to  be  transported  for  fom'teen  years.  The  judge 
and  jury  having  retired  for  a  few  minutes,  during  their  absence 
the  prisoner's  son,  a  youth  about  eighteen  years  of  age,  was 
brought  to  the  table  by  the  prisoner's  attorney,  and  confessed 
that  he  had  been  the  writer  of  the  letter  in  question,  and  not 
his  father.  He  then  wrote  on  a  piece  of  paper  from  memory  a 
copy  of  the  contents  of  the  anonymous  letter,  wh  ich  on  com- 
parison left  no  doubt  of  the  truth  of  his  statement.  The  writ- 
ing was  not  a  verbatim  copy,  although  it  differed  but  little  ;  and 
the  bad  spelling  of  the  original  was  repeated  in  the  copy.  The 
original  was  then  handed  to  him,  and  on  being  desired  to  do  so, 


286  PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE. 

be  copied  it,  and  the  writing  was  exactly  alike.  Upon  the 
return  of  the  learned  judge  the  circumstances  were  mentioned 
to  him,  and  two  days  afterwards  the  son  was  put  upon  his  trial 
and  convicted  of  the  identical  offence  which  had  been  imputed 
to  the  father.  It  appeared  that  he  had  access  to  the  bureau, 
which  was  commonly  left  open.  The  writing  of  the  letter  con- 
stituted in  fact  the  corpus  delicti  y  there  having  been  no  other 
evidence  to  inculpate  the  prisoner  as  the  sender  of  the  letter, 
which  would  however  have  been  the  natural  and  irresistible 
inference  if  he  had  been  the  writer.  The  correspondence  of  the 
fragment  of  paper  found  in  the  prisoner's  bureau  with  the  letter 
in  question,  and  with  the  two  others  of  the  same  nature  sent 
to  other  persons,  was  simply  a  circumstance  of  suspicion,  but 
foreign,  as  it  turned  out,  to  the  factum  in  question ;  and 
considering  that  other  persons  had  access  to  the  bureau,  its 
weight  as  a  circumstance  of  suspicion  seems  to  have  been 
overrated.! 

But,  perhaps,  the  most  extraordinary  and  instructive  case  of 
this  kind  that  has  ever  occurred,  was  that  of  Abraham  Thorn- 
ton, who  was  tried  at  the  Warwick  Autumn  Assizes,  1817,  be- 
fore Mr.  Justice  Holroyd,  for  the  alleged  murder  of  a  young 
woman,  who  was  found  dead  in  a  pit  of  water,  about  seven 
o'clock  in  the  morning,  with  marks  of  violence  about  her 
person  and  dress,  from  which  it  was  supposed  that  she  had 
been  violated,  and  afterwards  drowned.  The  deceased's  bonnet 
and  shoes  and  a  bundle  Avere  found  on  the  bank  of  the  pit. 
Upon  the  grass,  at  the  distance  of  forty  yards,  there  was  the 
impression  of  an  extended  human  figure,  and  a  large  quantity 
of  blood  was  upon  the  ground  near  the  lower  extremity  of  the 
figure,  where  there  were  also  the  marks  of  large  shoe-toes. 
Spots  of  blood  were  traced  for  ten  yards  in  a  direction  leading 
from  the  impression  to  the  pit,  upon  a  footpath,  and  about  a 
foot  and  a  half  from  the  path  upon  the  grass  on  one  side  of  it. 
When  the  body  was  found,  there  was  no  trace  of  any  footstep 
on  the  ffrass,  which  was  covered  with  dew  and  not  otherwise 
disturbed  than  by  the  blood ;  from  which  circumstance  it  was 
insisted  that  the  spots  of  blood  must  have  fallen  from  the  body 
while  being  carried  in  some  person's  arms.  Upon  the  examina- 
tion of  the  body,  about  half  a  pint  of  water  and  some  duckweed 

1  Rex  V.  Isaac  Looker,  Rex  v.  Edward  Looker,  A.  R.  1831,  9,    And  see 
Selections  from  the  charges  of  Mr.  Baron  Alderson. 


PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE.  2SY 

Tvere  found  in  the  stomach,  so  that  the  deceased  must  have  been 
alive  when  immersed  in  the  water.  There  were  Ulcerations 
about  the  parts  of  generation,  but  nothing  which  might  not 
have  been  caused  by  sexual  intercourse  with  consent.  Soon 
after  the  discovery  of  the  body,  there  were  found  in  a  newly 
harrowed  field  adjoining  that  in  which  the  pit  was  situate  the 
recent  footmarks  of  the  right  and  left  footsteps  of  the  prisoner 
and  also  of  the  footsteps  of  deceased,  which,  from  the  length 
and  depth  of  the  steps,  indicated  that  there  had  been  running 
and  pursuit,  and  that  the  deceased  had  been  overtaken.  From 
that  part  of  the  harrowed  field  where  the  deceased  had  been 
overtaken,  her  footsteps  and  those  of  the  prisoner  proceeded 
together,  walking  in  a  direction  towards  the  pit  and  the  spot 
where  the  impression  was  found,  until  the  footsteps  came 
within  the  distance  of  forty  yards  from  the  pit,  when  from  the 
hardness  of  the  ground  they  could  be  no  longer  traced.  The 
marks  of  the  prisoner's  running  footsteps  were  also  discovered 
in  a  direction  leading  from  the  pit  across  the  harrowed  field ; 
from  which  it  was  contended  that  he  had  run  alone  in  that 
direction  after  the  commission  of  the  supposed  murder.  The 
mark  of  a  man's  left  shoe  (but  not  proved  to  have  been  the 
prisoner's)  was  discovered  near  the  edge  of  the  pit,  and  it  was 
proved  that  the  prisoner  had  worn  right  and  left  shoes.  On 
the  prisoner's  shirt  and  breeches  were  found  stains  of  blood, 
and  he  acknowledged  that  he  had  had  sexual  intercourse  with 
the  deceased,  but  alleged  that  it  had  taken  place  with  her  own 
consent.  The  defence  set  up  was  an  alihi,  which,  notwithstand- 
ing these  apparently  decisive  facts,  was  most  satisfactorily 
established.  The  prisoner  and  the  deceased  had  met  at  a  dance 
on  the  preceding  evening  at  a  public-house  which  they  left 
together  about  midnight.  About  three  in  the  morning  they 
were  seen  talking  together  at  a  stile  near  the  spot,  and  about 
four  o'clock  the  deceased  called  at  the  house  of  Mrs.  Butler,  at 
Erdington,  where  she  had  left  a  bundle  of  clothes  the  day  be- 
fore. Here  she  appeared  in  good  health  and  spirits,  changed  a 
part  of  her  dress  for  some  of  the  garments  which  she  had  left 
there,  and  quitted  the  house  in  about  a  quarter  of  an  hour. 
Her  way  home  lay  across  certain  fields,  one  of  which  had  been 
newly  harrowed,  antl  joined  that  in  which  the  pit  was  situate. 
The  deceased  was  successively  seen  after  leaving  Mrs,  Butler's 
house  by  several  persons,  proceeding  alone  in  a  direction  towards 


288  PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE. 

her  own  home,  along  a  public  road  where  the  prisoner,  if  he 
had  rejoined  her,  could  have  been  seen  for  a  considerable  dis- 
tance ;  the  last  of  such  persons  saw  her  within  a  quarter  of  an 
hour  afterwards,  that  is  to  say,  before  or  about  half-past  four. 
At  about  half-past  four,  and  not  later  than  twenty-five  minutes 
before  five,  the  accused  was  seen  by  four  persons,  wholly  un- 
acquainted with  him,  walking  slowly  and  leisurely  along  a  lane 
leading  in  an  opposite  direction  from  the  young  woman's  course 
towards  her  home.  About  a  mile  from  the  spot  where  the 
prisoner  was  seen,  he  was  seen  by  another  witness  about  ten 
minutes  before  five,  still  walking  slowly  in  the  same  direction, 
with  whom  he  stopped  and  conversed  for  a  quarter  of  an  hour, 
after  which,  at  twenty-five  minutes  past  five,  he  was  again  seen 
walking  towards  his  father's  house,  which  was  distant  about 
half  a  mile.  From  Mrs,  Butler's  house  to  the  pit  was  a  distance 
of  upwards  of  a  mile  and  a  quarter  ;  and  allowing  twenty 
minutes  to  enable  the  deceased  to  walk  this  distance,  would 
bring  the  time  of  her  arrival  at  the  pit  to  twenty-five  minutes 
before  five ;  whereas  the  prisoner  was  first  seen,  by  four 
persons  above  all  suspicion,  at  half-past  four  or  twenty-five 
minutes  before  five,  and  the  distance  of  the  pit  from  the 
place  where  he  was  seen  was  two  miles  and  a  half.  Upon  the 
hypothesis  of  his  guilt,  the  prisoner  must  have  rejoined  the 
deceased  after  she  left  Mrs.  Butler's  house,  and  a  distance  of 
upwards  of  three  miles  and  a  quarter  must  have  been  trav- 
ersed by  him,  accompanied  for  a  portion  of  it  by  the  deceased, 
and  the  pursuit,  the  criminal  intercourse,  the  drowning,  and 
the  deliberate  placing  of  the  deceased's  bonnet,  shoes,  and 
bundle,  must  have  taken  place  within  twenty  or  twenty-five 
minutes.  The  defence  was  set  up  at  the  instant  of  the  prisoner's 
apprehension,  which  took  place  within  a  few  hours  after  the 
discovery  of  the  body,  and  was  maintained  without  contradic- 
tion or  variation  before  the  coroner's  inquest  and  the  com- 
mitting magistrates,  and  also  upon  the  trial,  and  no  inroad  was 
made  on  the  credibility  of  the  testimony  by  which  it  was  sup- 
ported. The  various  timepieces  to  which  the  witnesses  referred, 
and  which  differed  much  from  each  other,  were  carefully  com- 
pared on  the  day  after  the  occurrence,  and  reduced  to  a  com- 
mon standard,  so  that  there  could  be  no  doubt  of  the  real  times 
as  spoken  to  by  them.  Thus,  it  was  not  within  the  bounds  of 
possibility  that  the  prisoner  could  have  committed  the  crime 


PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE.  £89 

imputed  to  him  ;  nevertheless,  public  indignation  was  so  strongly 
excited  that  his  acquittal,  though  it  afforded  a  fine  example  of 
the  calm  and  unimpassioned  administration  of  justice,  occa- 
sioned great  public  dissatisfaction.  There  was,  nevertheless,  a 
total  absence  of  all  conclusive  evidence  of  a  corpus  delicti^  which 
the  jury  were  required  to  infer  from  circumstances  of  apparent 
suspicion.  The  deceased  might  have  drowned  herself,  in  a 
moment  of  bitter  remorse,  after  parting  from  her  seducer,  and 
excited  to  agonizing  reflection  by  the  sight  of  so  many  ap- 
palling marks  of  her  ruin.  It  was  possible  that  she  might  have 
sat  down  to  change  her  dancing-shoes  for  the  boots  which  she 
had  worn  the  preceding  day  and  carried  in  her  bundle,  and 
fallen  into  the  water  from  exhaustion ;  for  she  had  walked  to  and 
from  market  in  the  morning,  had  exerted  herself  in  dancing  in 
the  evening,  and  had  been  wandering  all  night  in  the  fields 
without  food.  The  allegation  that  the  prisoner  had  violated 
the  deceased,  and  therefore  had  a  motive  to  destroy  her,  was 
mere  conjecture  ;  and  from  the  circumstance  of  her  having  been 
out  all  night  with  the  prisoner,  \A\h  whom  she  was  previously 
unacquainted,  and  from  the  state  of  the  garments  which  she 
took  off  at  Mrs,  Butler's,  as  compared  with  those  for  which  she 
exchanged  them,  it  was  clear  that  the  sexual  intercourse  had 
taken  place  before  she  called  there,  at  which  time  she  made  no 
complaint,  but  appeared  composed  and  cheerful.  Again,  the 
inference  contended  for,  from  the  state  of  the  grass,  with  drops 
of  blood  upon  it  where  the  dew  had  not  been  disturbed,  was 
equally  groundless ;  for  there  was  no  proof  that  the  dew  had  not 
been  deposited  after  the  drops  of  blood  ;  and  it  clearly  appeared 
that  the  footsteps  of  the  prisoner  and  the  deceased  could  not 
be  traced  on  other  parts  of  the  grass  where,  beyond  all  doubt, 
they  had  been  together  in  the  course  of  the  night.  Noav,  sup- 
pose that  the  alihi  had  been  incapable  of  satisfactory  proof, 
that  the  prisoner  had  not  been  seen  after  parting  from  the 
deceased,  and  that  the  inconclusiveness  of  the  inference  sug- 
gested from  the  discovery  of  drops  of  blood  on  the  grass,  where 
there  were  no  footmarks,  had  not  been  manifested  by  the 
absence  of  those  marks  in  other  places  where  they  had  unques- 
tionably been  together  in  the  night,  the  guilt  of  the  prisoner 
would  have  been  considered  indubitable,  and  his  execution 
certain ;  and  yet  these  exculpatory  circumstances  were  entirely 
19 


290  PROOF  OF  THE  FACTS  ALLEGED  IS  REQUISITE. 

collateral,  and  independent  of  the  facts  which  were  supposed 
to  be  clearly  indicative  of  guilt.^ 

1  The  friends  of  the  deceased  brought  an  appeal  of  death,  in  which  the 
defendant  tendered  wager  of  battle,  and  the  proceedings  led  to  the  abolition, 
by  St.  59  G.  III.  c.  46,  of  tliat  barbarous  relic  of  feudal  times.  See  Ashford 
V.  Thornton,  4  B.  &  Aid.  405  ;  Short-hand  Rep.  and  Observations  upon  the 
case  of  Abraham  Thornton,  by  Edward  Holroyd,  Esq.,  where  the  judge's 
notes  of  the  evidence  are  given. 


CHAPTER  II. 

THE  BURDEN  OF  PROOF. 

The  hurden  of  lyroof  is  always  on  the  jparty  toho  asserts  the 
existence  of  any  fact  which  infers  legal  accountahility.  ^ 

This  is  a  universal  rule  of  jurisprudence,  founded  upon  evi- 
dent principles  of  justice  ;2  and  it  is  a  necessary  consequence, 
that  the  affirmant  party  is  not  absolved  from  its  obligation 
because  of  the  difficulty  which  may  attend  its  application. 
To  prove  a  negative  is  in  most  cases  difficult,  in  many  impos- 
sible. And  this  rule  has  been  adopted  because  the  affirmative 
is  capable  of  simple  and  direct  proof  of  which  the  negative 
does  not  admit.^ 

No  man  can  be  justly  deprived  of  his  social  rights  but  upon 
proof,  that  he  has  committed  some  act  which  legally  involves 
the  forfeiture  of  them.  The  law  respects  the  status  in  quo, 
and  regards  every  man  as  legally  innocent  until  the  contrary 
be  proved. 

Bigelow,  J.,  after  stating  the  general  rule  as  to  the  burden 
of  proof,  remarked:  "This  results  not  only  from  the  well- 
established  principle  that  the  presumption  of  innocence  is  to 
stand  until  it  is  overcome  by  proof,  but  also  from  the  form  of 
the  issue  in  all  criminal  cases  tried  on  the  merits,  which  being 
always  a  general  denial  of  the  crime  charged,  necessarily  im- 
poses on  the  government  the  burden  of  showing  affirmatively 
the  existence  of  every  material  fact  or  ingredient,  which  the 
law  requires  in  order  to  constitute  an  offence.  If  the  act 
charged  is  justifiable  or  excusable,  no  criminal  act  has  been 

1 1  Greenl.  Ev.  §  74 ;  Stevenson  v.  Marony,  29  111.  532  ;  McClure  v.  Pur- 
sell,  6  Ind.  330  ;  Hampton  v.  State,  1  Tex.  Grim.  App.  652  ;  Kelley  v.  People, 
17  Colo.  130. 

2  Such  was  the  rule  of  the  Roman  law  :  Ei  incumbit  probatio  qui  dicit, 
non  qui  negat.     Dig.  lib.  22,  tit.  3,  b.  2. 

3  1  Greenl.  on  Ev.  (14th  Ed.)  105.  See  Com.  v.  Trecy.  8Cush.  1  ;  Crownin- 
Bhield  V.  Crowninshield,  2  Gray,  524. 

291 


292  THE  BURDEN  OF  PROOF. 

committed,  and  the  allegations  in  the  indictment  are  not  proved. 
And  this  makes  a  broad  distinction  in  the  application  of  the 
rule  of  the  burden  of  proof  to  civil  and  criminal  cases.  In 
the  former,  matters  of  justification  or  excuse  must  be  specially 
pleaded  in  order  to  be  shown  in  evidence,  and  the  defendant 
is  therefore,  by  the  form  of  his  plea,  obliged  to  aver  an  affirm- 
ative, and  thereby  to  assume  the  burden  of  establishing  it  by 
proof ;  while  in  the  latter  all  such  matters  are  open  under  the 
general  issue,  and  the  affirmative,  namely,  proof  of  the  crime 
charged,  remains  in  all  stages  of  the  case  upon  the  govern- 
ment." ^ 

Criminality,  therefore,  is  never  to  be  presumed.  But, 
nevertheless,  the  operation  of  this  rule  may,  to  a  certain  extent, 
be  modified  by  circumstances  which  create  a  counter-obligation, 
and  shift  the  onus  prohandi. 

Lord  Brougham  said  that  the  burden  of  proof  often  shifts 
about  from  one  party  to  the  other  in  the  progress  of  a  cause, 
according  as  the  evidence  raises  a  presumption  one  way  or  the 
other.2 

It  follows,  from  the  very  nature  of  circumstantial  evidence, 
that,  in  drawing  an  inference  or  conclusion  as  to  the  existence 
of  a  particular  fact  from  other  facts  that  are  proved,  regard 
must  always  be  had  to  the  nature  of  the  particular  case,  and 
the  facility  that  appears  to  be  afforded,  either  of  explanation 
or  contradiction.^ 

Lord  EUenborough  said  that  no  person  accused  of  crime  is 
bound  to  offer  any  explanation  of  his  conduct,  or  of  circum- 
stances of  suspicion  which  attach  to  him ;  but,  nevertheless, 
if  he  refuse  to  do  so,  where  a  'strong  prima  facie  case  has  been 
made  out,  and  when  it  is  in  his  own  power  to  offer  evidence, 
if  such  exist,  in  explanation  of  such  suspicious  appearances, 
which  would  show  them  to  be  fallacious  and  explicable  in  con- 
sistency with  his  innocence,  it  is  a  reasonable  and  justifiable 
conclusion  that  he  refrains  from  doing  so  only  from  the  con- 
viction that  the  evidence  so  suppressed  or  not  adduced  would 
operate  adversely  to  his  interest.* 

1  Com.  V.  McKie,  1  Gray,  61. 

2  Wareing  v.  Wareing,  6  Moore's  P.  C.  Rep.  355. 

3  Per  Lord  Chief  Justice  Abbott,  in  Rex  v.  Burdett,  4  B.  &  Aid.  161. 
*  Rex  V.  Cochrane,  Gurney's  Rep. 


THE  BURDEN  OF  PROOF.  293 

Therefore,  while  the  burden  of  establishing  the  guilt  of  the 
accused  is  never  shifted  from  the  State,^  it  is  a  qualification  of 
the  rule  in  question,  that  in  every  case  the  onus  jprohandi  lies 
on  the  person  who  is  interested  to  support  his  case  by  a 
particular  fact,  which  lies  more  particularly  within  his  own 
knowledge,  or  of  which  he  is  supposed  to  be  cognizant.  In 
a  subsequent  part  of  the  opinion  from  which  we  quoted  on  a 
preceding  page  the  learned  judge  said  further :  "  There  may 
be  cases  where  a  defendant  relies  on  some  distinct,  substantive 
ground  of  defence  to  a  criminal  charge,  not  necessarily  con- 
nected with  the  transaction  on  which  the  indictment  is  founded 
(such  as  insanity,  for  instance),  in  which  the  burden  of  proof 
is  shifted  upon  the  defendant."  ^  This  is  not  allowed  to  supply 
the  want  of  necessary  proof,  whether  direct  or  presumptive, 
against  a  defendant,  of  the  crime  with  which  he  is  charged ; 
but  when  such  proof  has  been  given,  it  is  a  rule  to  be  applied 
in  considering  the  weight  of  the  evidence  against  him,  whether 
direct  or  presumptive,  when  it  is  unopposed,  unrebutted,  or  not 
weakened  by  contrary  evidence,  which  it  would  be  in  the 
defendant's  power  to  produce,  if  the  fact  directly  or  presump- 
tively proved  were  not  true.^  It  has  been  well  observed,  that 
in  such  cases  we  have  something  like  an  admission  that  the 
presumption  is  just.*  It  would  naturally  happen  that  in  most 
cases  d, prima  facie  case  would  satisfy  the  jury.^  But  "in 
drawing  an  inference  or  conclusion,  regard  must  always  be 
had,"  as  was  said  by  the  Lord  Chief  Justice  Abbott ;  ^  "to 

1  People  V.  Marks,  4  Park.  Cr.  R.  153 ;  State  v.  Wingo,  66  Mo.  181 ;  Jones 
r.  State,  13  Tex.  Grim.  App.  1  ;  Turner  v.  Com.,  86  Pa.  St.  54. 

"  In  every  criminal  case,"  said  Judge  Campbell,  in  People  v.  Millard,  53 
Mich.  68,  "  the  burden  is  throughout  upon  the  prosecution.  Whatever 
course  the  defence  deem  it  prudent  to  take  in  order  to  explain  suspicious 
facts  or  remove  doubts,  yet  it  is  incumbent  on  the  prosecution  to  show  under 
all  circumstances,  as  a  part  of  their  own  case,  unless  admitted  or  shown  by 
the  defence  that  there  is  no  innocent  theory  possible  which  will,  without 
violation  of  reason,  accord  with  the  facts.  And  in  a  case  of  alleged  poison- 
ing where  the  symptoms  and  appearances  during  the  last  illness  become 
controlling  facts  in  determining  whether  the  death  was  from  poison  or  from 
disease,  the  charge  is  not  made  out  unless  the  prosecution  negative  every- 
thing but  poison  as  the  cause  of  death." 

2  Opinion  of  Mr.  Justice  Biqelow,  in  Com.  v.  McKie,  1  Gray,  61. 
^  Per  Mr.  Justice  Holroyd,  in  Rex  v.  Burdett,  4  B.  &  Aid.  140. 

*  Per  Mr.  Justice  Best,  Id.  122.  ^  state  v.  Wingo,  66  Mo.  181. 

6  Rex  V.  Burdett,  4  B.  &  Aid.  161. 


294  THE  BURDEN  OF  PROOF. 

the  nature  of  the  particular  case,  and  the  facility  that  appears 
to  be  afforded  either  of  explanation  or  of  contradiction.  No 
person  is  to  be  required  to  explain  or  contradict,  until  enough 
has  been  proved  to  warrant  a  reasonable  and  just  conclusion 
against  him,  in  the  absence  of  explanation  or  contradiction ; 
but  when  such  proof  has  been  given,  and  the  nature  of  the  case 
is  such  as  to  admit  of  explanation  or  contradiction,  if  the  con- 
clusion to  which  the  proof  tends  be  imtrue,  and  the  accused 
offers  no  explanation  or  contradiction,  can  human  reason  do 
otherwise  than  adopt  the  conclusion  to  which  the  proof  tends  ? 
The  premises  may  lead  more  or  less  strongly  to  the  conclusion, 
and  care  must  be  taken  not  to  draw  the  conclusion  hastily ; 
but  in  matters  that  concern  the  conduct  of  men,  the  certainty 
of  mathematical  evidence  cannot  be  required  or  expected  ; 
and  it  is  one  of  the  peculiar  advantages  of  our  jurisprudence, 
that  the  conclusion  is  to  be  drawn  by  the  unanimous  judgment 
and  conscience  of  twelve  men  conversant  with  the  affairs  and 
business  of  life,  and  who  know  that  when  reasonable  doubt  is 
entertained,  it  is  their  duty  to  acquit ;  and  not  of  one  or  more 
lawyers,  whose  habits  might  be  suspected  of  leading  them  to 
the  indulgence  of  too  much  subtlety  and  refinement."  To  the 
same  effect  Lord  Chief  Justice  Tindal,  on  a  trial  for  high 
treason,  said,  that  "  the  offence  charged  against  the  prisoner 
must  be  proved  by  those  who  make  the  charge.  The  proof  of 
the  case  against  the  prisoner  must  depend  for  its  support  not 
upon  the  absence  or  want  of  any  explanation  on  the  part  of 
the  prisoner  himself,  but  upon  the  positive  affirmative  evidence 
of  the  guilt  that  is  given  by  the  crown.  It  is  not,  however, 
an  unreasonable  thing,"  said  the  learned  judge,  "  and  it  daily 
occurs  in  investigations,  both  civil  and  criminal,  that  if  there 
is  a  certain  appearance  made  out  against  a  party,  if  he  is 
involved  by  the  evidence  in  a  state  of  considerable  suspicion, 
he  is  called  upon,  for  his  own  sake  and  his  own  safety,  to  state 
and  bring  forward  the  circumstances,  whatever  they  may  be, 
which  might  reconcile  such  suspicious  appearances  with  perfect 
innocence.^  But  this  doctrine,  it  has  been  well  observed,  is  to 
be  cautiously  applied,  and  only  in  cases  where  it  is  manifest 

1  Reg.  V.  Frost,  Monmouth  Sp.  Comra.,  Jan.  1840,  Gurney's  Report,  689. 
And  see  the  language  of  Lord  Ellenborough,  in  Rex  v.  Despard,  28  St.  Tr. 
521;  and  in  Rex  v.  "Watson,  32  Id.  583  ;  and  that  of  Le  Blanc,  J.,  in  Rex 
V.  Mellor  and  others,  31  St.  Tr.  1032. 


THE  BURDEN  OF  PROOF.  295 

that  proofs  are  in  the  power  of  the  accused,  not  accessible  by 
the  prosecution."  ^ 

"Where  a  defence  is  set  up,  the  burden  of  proof  is  on  the 
defendant.*  The  State  having  made  s^,  prima  facie  case,  the 
accused  may  overthrow  it,  and  this  is  done  when  he  raises  a 
reasonable  doubt  as  to  the  facts  made  by  the  State,  or  by 
proving  an  alihi,  insanity,  or  any  other  defence  inconsistent 
with  guilt.3  Therefore,  it  is  incontestably  the  rule  that  when 
a  defendant  sets  up  a^^&^*  or  insanity^  he  has  the  burden  of 
establishing  his  defence.  And  it  is  sufficient  to  establish  such 
facts  and  circumstances  as  will,  in  connection  with  the  other  evi- 
dence, engender  in  the  minds  of  the  jury  a  reasonable  doubt  of 
the  truth  of  the  charge.^  The  defence  need  not  be  established 
by  a  preponderance  of  the  evidence.^  An  instruction  imposes 
too  great  a  burden  of  proof  upon  the  defendant  which  declares 
that  he  must  satisfy  the  jury  beyond  a  reasonable  doubt  that 
the  alihi  is  true  ;  ^  or  that  he  must  establish  it  to  the  jury's 
satisfaction.^  And  where  an  alihi  is  set  up,  an  instruction  that 
it  will  be  the  duty  of  the  jury  to  acquit  all  or  such  of  the 
defendants  as  they  believe  not  to  have  been  present  at  the 
commission  of  the  crime,  is  erroneous.  They  should  be  directed 
to  acquit  all  as  to  whose  presence  they  have  a  reasonable 
doubt.^'^  On  the  other  hand,  an  instruction  that  defendant 
relies  upon  an  alihi,  and  that  if  it  is  established  it  is  a  complete 
defence,  is  not  misleading  as  placing  the  burden  of  establish- 
ing the  alihi  on  defendant,  where  the  jury  are  elsewhere  in- 
formed that  the  People  must  establish  every  requisite  to  a 
conviction  by  evidence  which  removes  every  reasonable  doubt 
from  the  minds   of  the  jury.^^     And   the  statement  by   the 

^  Per  Shaw,  C.  J.,  in  Webster's  Case,  ut  supra,  467. 

»  State  V.  Grear,  29  Minn.  24  ;  People  v.  Bell,  49  Cal.  486. 

8  State  V.  Paulk,  18  S.  C.  514. 

*  Garetz  v.  People,  107  111.  163  ;  State  v.  Waterman,  1  Nev.  543  ;  Rudy  v. 
Com.,  128  Pa.  St.  500;  Carlton r.  People  150  111.  181.  See,  however,  State 
V.  Chee  Gong,  19  Pac.  607. 

6  Lake  v.  People,  1  Park.  Cr.  R.  495  ;  Laros  v.  Com.,  84  Pa.  St.  200  ;  State 
V.  Henrick,  62  la.  414  ;  Newcomb  v.  State,  37  Miss.  383  ;  Loeffner  v.  State, 
10  Ohio  St.  598  ;  Graham  v.  Com.,  16  B.  Mon.  587  ;  State  v.  DeRance,  34 
La.  Ann.  186  ;  People  v.  Messersmith,  61  Cal.  246. 

6  Carlton  v.  People  150  lU.  181. 

^  State  V.  Taylor,  118  Mo.  153. 

8  MUes  V.  State,  93  Ga.  117.  «  Prince  v.  State,  100  Ala.  144. 

»"  Garcia  v.  State  (Fla.),  16  So.  223. 

"  People  V.  Fuhrman  (Mich.),  61  N.  W.  865. 


296  THE  BURDEN  OF  PROOF. 

court,  that  an  alibi  is  a  good  defence  if  proved,  is  not  erroneous 
or  misleading,  where  the  jury  are  directed  in  the  same  connec- 
tion that  if  they  have  a  reasonable  doubt  of  the  presence  of 
the  accused  at  the  place  of  the  commission  of  the  crime,  at  the 
time  thereof,  they  must  acquit.^ 

Every  person  accused  of  crime  is  presumed  to  be  sane,  and 
that  legal  presumption  is  all  the  proof  required  of  the  prosecu- 
tion. If  the  defence  insists  upon  insanity  as  an  excuse  for 
the  defendant's  action,  the  burden  is  upon  him  to  establish  it.^ 
The  rule  is  stated  in  language  to  the  effect  that  the  sanity  of 
one  accused  of  crime  will  be  presumed  until  rebutted  by  satis- 
factory proof  .^  In  a  recent  case  in  Massachusetts  the  court 
said  that  the  burden  resting  upon  the  government,  "  so  far  as 
the  matter  of  insanity  is  concerned,  is  ordinarily  satisfactorily 
sustained  by  the  presumption  that  every  person  of  sufficient 
age  is  of  sound  mind  and  understands  the  nature  of  his  acts.* 
But  when  the  circumstances  are  all  in,  on  the  one  side  going 
to  show  a  want  of  adequate  capacity,  on  the  other  side  going 
to  show  usual  intelligence,  the  burden  rests  where  it  was  in  the 
beginning — upon  the  government.^ 

In  Louisiana  the  accused  has  the  burden  of  establishing  the 
plea  of  insanity  relied  upon  by  him  to  the  satisfaction  of  the 
jury  beyond  a  retisonable  doubt.^  The  rule  generally  adopted 
is  that  when  the  defence  of  insanity  is  relied  upon,  if  the  evi- 
dence introduced  tends  to  rebut  the  presumption  of  sanity  on 
the  part  of  the  accused,  and  the  jury  entertain  a  reasonable 
doubt,  after  due  consideration  of  all  the  evidence,  as  to  his 
sanity,  it  is  their  duty  to  acquit.^ 

It  is  a  necessary  consequence  of  this  rule,  rather  than  a  sub- 
stantive rule,  that  the  corpus  delicti  must  be  clearly  proved 
before  any  effect  is  attached  to  circumstances  supposed  to  be 
inculpatory  of  a  particular  individual ;  but  this  is  a  branch  of 
the  subject  of  so  much  importance  and  of  such  comprehensive 
extent,  as  to  require  consideration  in  a  more  extended  manner. 

1  State  V.  Price  (Kan.),  41  Pac.  1001. 

2  Faulker  v.  Terr.  (N.  M.),  30  Pac.  905  ;  Guetig  v.  State,  66  Ind.  94.  See 
O'ConneU  v.  People,  87  N.  Y.  377  ;  Cogle  v.  Com.,  100  Pa.  St.  573. 

*  State  V.  Harrigan,  9  Hovist.  369.  And  see  State  v.  Hartley  (Nev.),  40 
Pac.  372.  *  State  f .  Hansen  (Ore.),  36  Pac.  296. 

6  Pomeroy's  Case,117  Mass.  143.     See  further  Ballard  v.  State,  19  Neb.  609. 
«  State  V.  Clements,  47  La.  Ann.  1088. 
'Armstrong  v.  State,  30  Florida,  170  ;  17  L.  R.  A.  484. 


CHAPTER  III. 

THE  BEST  EVroENCE  MUST  BE  ADDUCED. 

In  all  cases,  vjhether  of  direct  or  circumstantial  evidence,  the 
"best  evidence  must  he  adduced  which  the  nature  of  the  case 
admits.  The  rule  Avhich  requires  the  production  of  the  best 
evidence  is  applied  to  reject  secondary  evidence  which  leaves 
that  of  a  higher  nature  behind  in  the  power  of  the  party .^ 
The  suppression  or  non-production  of  pertinent  and  cogent  evi- 
dence necessarily  raises  a  strong  presumption  against  the  party 
who  withholds  such  evidence  when  he  has  it  in  his  power  to 
produce  it.  Some  interesting  exemplifications  of  this  are  to  be 
found  in  another  part  of  this  volume.^ 

This  rule  applies  a  fortiori  to  circumstantial  evidence,  a  kind 
of  proof  which,  for  reasons  which  have  been  already  urged,  is 
inherently  inferior  to  direct  and  positive  testimony  ;  and,  there- 
fore, whenever  such  evidence  is  capable  of  being  adduced,  the 
very  attempt  to  substitute  a  description  of  evidence  not  of  the 
same  degree  of  force,  necessarily  creates  a  suspicion  that  it  is 
withheld  from  corrupt  and  sinister  motives.^  When  it  is  dis- 
closed that  direct  evidence  is  probably  in  existence,  circumstan- 
tial evidence  cannot  be  resorted  to  without  accounting  for  the 
absence  of  the  direct  evidence.* 

Circumstantial  evidence  is  not  admissible  to  prove  the  corpus 
delicti  when  better  evidence  is  attainable.  Where  the  defend- 
ant was  charged  with  an  assault,  it  was  held  that  circumstan- 
tial evidence  w^as  not  legitimate  to  prove  the  assault  and  to 
connect  the  defendant  with  it  when  the  victim,  for  all  that 
appeared,  might  have  been  called  as  a  witness.* 

1  U.  S.  V.  Gilbert,  2  Sumn.  19.  2  See  ante,  138  ei  seq. 

^  See  ante,  142;  Jervis,  C.  J.,  in  Twyman  v.  Knowles,  13  C.  B.  224; 
76  E.  C.  L.  ;  Cutbush  v.  Gilbert,  4  S.  &  R.  551  ;  Taylor  v.  Riggs,  1  Pet.  S. 
C.  Rep.  596. 

*  Gabrielsky  v.  State,  13  Tex.  Grim.  App.  428. 

6  Porter  v.  State,  1  Tex.  Grim.  App.  894. 

297 


298  THE  BEST  EVIDENCE  MUST  BE  ADDUCED. 

Where  non-consent  is  a  principal  ingredient  in  the  offence, 
direct  proof  alone  from  the  person  whose  non-consent  is  neces- 
sary can  satisfy  the  rule.  Other  and  inferior  proof  cannot  be 
resorted  to  till  it  be  impossible  to  procure  this  best  evidence.^ 

In  such  cases,  mere  presumptive,  prima  facie^  or  circumstan- 
tial evidence  is  secondary  in  degree,  and  cannot  be  used  till  all 
the  sources  of  direct  evidence  are  exhausted. ^ 

Circumstantial  evidence  is  admissible  to  prove  the  want  of 
the  owner's  consent  to  the  taking  of  property  only  when  the 
owner  is  inaccessible  by  the  use  of  ordinary  diligence  or  beyond 
the  reach  of  legal  process.^  When  it  is  shown  that  direct  tes- 
timony cannot  be  produced,  and  that  the  failure  to  produce  it 
is  not  attributable  to  any  want  of  diligence,  or  to  any  fault  on 
the  part  of  the  prosecution,  then  it  is  perfectly  proper  to  resort 
to  circumstantial  evidence.* 

On  an  indictment  under  an  old  statute,  now  repealed,  in 
England,  for  lopping  a  timber  tree  without  the  consent  of  the 
owner,  the  land-steward  was  called  to  prove  that  he  himself 
never  gave  any  consent,  and  from  all  he  had  heard  his  master 
say  (the  master  ha\ang  died  before  the  trial)  he  believed  he 
never  did.  It  was  left  to  the  jury  to  say  whether  they  thought 
there  was  reasonable  evidence  to  show  that  in  fact  no  consent 
had  been  given.  Bayley,  J.,  adverted  to  the  time  of  night 
when  the  offence  was  committed,  and  to  the  circumstance  of 
the  prisoner  moving  away  when  detected,  as  evidence  to  show 
that  the  consent  required  had  not,  in  fact,  been  given.  And 
the  master,  previous  to  his  death,  had  ordered  that  the  prisoner 
should  be  apprehended  on  suspicion.^ 

A  jury  ought  not  to  be  told  that  a  conviction  ought  not  to 
be  had  on  circumstantial  evidence  when  positive  evidence  is 
attainable,  when,  in  fact,  no  positive  evidence  is  attainable  in 
the  case.^ 

Nor  is  the  application  of  the  rule  confined  to  the  proof  of 
the  principal  fact ;  it  is  "  the  master  rule  which  governs  all  the 

1  Chisholm  v.  State,  45  Ala.  66 ;  Dixon  v.  State,  15  Tex.  Crim.  App.  480. 

3  Williams  v.  East  India  Co.,  3  East,  192. 
Love  V.  State,  15  Tex.  Crim.  App.  563. 

*  Clayton  v.  State,  15  Tex.  Crim.  App.  348.  See  also  Schultz  v.  State,  20 
Tex.  Crim.  App.  308  ;  Williams  v.  State,  19  Id.  276  ;  Trafton  v.  State,  5  Id. 
480  ;  Foster  v.  State,  4  Id.  246. 

6  Rex  V.  Hagy,  2  C.  &  P.  (12  E.  C.  L.)  458.  See  also  Rex  v.  Allen,  1  Moo. 
C.  C.  154,  6  Coleman  v.  State,  87  Ala.  14. 


THE  BEST  EVIDENCE  MUST  BE  ADDUCED.  299 

subordinate  rules  ; "  ^  and  applies  alike  to  the  proof  of  every 
individual  constituent  fact,  whether  principal  or  subordinate. 
Thus,  in  a  trial  for  murder,  Mr.  Baron  Maule  refused  to  receive 
evidence  of  the  contents  of  a  cofRn-plate  in  order  to  establish 
the  identity  of  the  deceased,  on  the  ground  that,  being  remov- 
able, it  might  have  been  produced,  and  there  being  no  other 
case  of  identity,  stopped  the  case.^  The  rule  is,  however,  neces- 
sarily relaxed,  where  its  application  becomes  impracticable  by 
the  wrongful  act  of  the  party  who  would  otherwise  be  entitled 
to  claim  its  protection  ;  as  where  a  witness  is  kept  out  of  the 
way  by  or  on  his  behalf,^  or  a  deed  or  other  instrument  in  his 
possession,  which  he  refuses,  after  notice,  to  produce.* 

Considering,  moreover,  the  inherent  infirmity  of  human 
memory,  in  the  fair  construction  and  application  of  this  rule, 
evidence  ought,  in  all  criminal  cases,  and  d  fortiori  in  cases  of 
circumstantial  evidence,  to  be  received  with  distrust,  wherever 
any  considerable  time  has  elapsed  since  the  commission  of  the 
alleged  offence.  The  justice  and  efiicacy  of  punishment,  and 
more  especially  of  capital  punishment,  inflicted  after  the  lapse 
of  any  considerable  interval,  at  least  where  the  offender  has 
not  withdrawn  himself  from  the  reach  of  justice,  are  more  than 
questionable.^  An  unavoidable  consequence  of  great  delay  is, 
that  the  part}''  is  deprived  of  the  means  of  vindicating  his  in- 
nocence, or  of  proving  the  attendant  circumstances  of  extenu- 
ation ;  the  crime  itself  becomes  forgotten,  or  is  remembered 
but  as  a  matter  of  tradition,  and  the  offender  may  have  become 
a  different  moral  being :  in  such  circumstances  punishment  can 
seldom,  perhaps  never,  be  efficacious  for  the  purpose  of  example. 
On  these  accounts  judges  and  juries  are  now  always  reluctant 
to  convict  parties  charged  with  offences  committed  long  pre- 
viously. 

1  3  Burke's  Works,  ut  supra,  618  ;  Mittermaier,  ut  supra,  ch.  57. 

2  Reg.  V.  Edge,  Chester  Spr.  Ass.,  1842. 

3  Hawk,  P.  C.  Bk.  2,  c.  46,  §  15 ;  R.  v.  Guttridge,  9  C.  &  P.  471  ;  Reg.  v. 
Scaife,  20  L.  J.  M.  C.  229. 

*  Rex  V.  Hunter,  3  C.  &  P.  491  ;  4  Id.  128  ;  Rex  v.  Haworth,  4  C.  &  P. 
254  ;  and  see  ante,  Ch.  III.  §  7. 

6  Rex  V.  Home,  executed  at  Nottingham  in  1759,  for  the  murder  of  his 
natural  child  forty  years  before,  4  Cel.  Trials,  396  ;  and  Rex  v.  Wall,  28  St. 
Tr.  51,  whose  execution  took  place  after  the  lapse  of  twenty  years  from  the 
commission  of  the  offence  ;  and  see  the  strictures  of  Lord  Campbell  on  the 
case,  3  Lives  of  the  C.  Justices,  147  ;  and  Rex  v.  Roper,  Leicester  Sum. 
Ass.,  1836,  for  a  murder  committed  thirty-four  years  before,  A.  R.  1836. 


CHAPTER  IV. 

THE   QUANTITY   OF   EVIDENCE   NECESSARY   TO   CONVICT.  w 


Section  I. 
TTie  Facts  must  he  Incompatible  vnih  Innocence. 

In  order  to  justify  the  inference  of  guilt,  the  inculpatory 
facts  must  he  im.com/patihle  with  the  innocence  of  the  accused, 
a/nd  incapable  of  explanation  upon  any  other  reasonable  hypoth- 
esis than  that  of  his  guilt}  This  is  the  fundamental  rule,  the 
experimentum  crucis  by  which  the  relevancy  and  effect  of 
circumstantial  evidence  must  be  estimated.  The  circumstances 
vrhich  will  amount  to  proof  sufficient  to  justify  a  conviction 
can  never  be  matter  of  general  definition.^  Mere  suspicion, 
or  grave  suspicion,  is  not  enough  to  convict.^  And  an  instruc- 
tion is  erroneous  from  Avhich  the  jury  may  gather  that  they 
may  convict  on  a  preponderance  of  evidence.*  Circumstances 
are  sufficient  to  convict  when  they  are  irreconcilable  with  any 
reasonable  hypothesis  of  the  prisoner's  innocence.^ 

It  is  not  necessary  to  prove  such  coincidence  of  circumstances 
as  excludes  every  hypothesis  but  the  guilt  of  the  prisoner.^ 

The  existence  of  the  inculpatory  facts  need  not  be  absolutely 
incompatible  with  the  innocence  of  the  accused,  since  that  is 
to  ask  for  proof  of  guilt  beyond  the  possibility  of  a  doubt,'^ 
while  neither  the  criminal  act  nor  the  wicked  intent  need  be 
proved  beyond  the  possibility  of  a  doubt.®    The  truth  of  any 

1  Hunt  V.  State,  1  Grim.  L.  Mag.  234 ;  State  v.  Miller,  9  Houst.  564. 

2  Powers  V.  State,  16  Tex.  546.  »  State  v.  Clouser,  69  la.  313. 
*  Gill  V.  State,  59  Ark.  423. 

6  Kehoe  v.  Com.,  85  Pa.  St.  127  ;  State  v.  Johnson,  19  la.  230  ;  Beavers  v. 
State,  58  Ind.  530. 

6  Garrett  v.  State,  97  Ala.  18 ;  State  v.  Matthews,  66  N.  C.  106  ;  State 
V.  SchcBnwald,  31  Mo.  147  ;  Horn  v.  State  (Ala.),  15  So.  278. 

I  Carlton  v.  People,  150  111.  181  ;  People  v.  Murray,  41  Cal.  66  ;  U.  S.  v. 
Cassidv,  G7  Fed.  Rep.  698.  s  state  v.  Daley,  41  Vt.  564. 

'300 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    301 

fact  which  is  to  be  proven  by  evidence  cannot  be  established 
beyond  the  possibility  of  a  doubt,  and  yet  the  jury  may  be 
entirely  satisfied  of  its  truth.i  ^^  u  undoubting  "  com^ction  of 
guilt  need  not  be  produced.^  It  is  not,  therefore,  necessary  that 
the  circumstances  should  include  all  possibility  that  another 
than  the  accused  committed  the  crime.^  And  an  instruction 
ought  not  to  be  given  from  Avhich  the  jury  can  take  the 
meaning,  that  if  they  believe  from  the  evidence  that  it  is  pos- 
sihle  some  other  person  than  the  defendant  committed  the 
crhne  they  ought  to  acquit,  no  matter  how  strong,  consistent 
with  such  possibility,  the  evidence  might  be  for  the  State.* 
But  moral  certainty  must  be  produced. 

Where  the  counsel  for  defendant  argued  that  the  guilt  of  the 
accused  must  be  so  clearly  demonstrated  as  to  answer  or  rebut 
every  suggestion  or  doubt  that  the  ingenuity  of  counsel  can 
devise,  the  court  said  that  while  everything  relating  to  human 
affairs  depending  on  moral  evidence  is  open  to  some  possible 
or  imaginary  doubt,  still  circumstantial  e^ddence  can  be  relied 
on  as  sufficient  when  it  excludes,  to  a  moral  certainty,  every 
other  reasonable  hypothesis  except  that  of  guilt.^  And  it  has 
been  held  that  in  this  connection  the  word  conclusion  is  properly 
used  instead  of  hypothesis.^  The  hypothesis  of  guilt  must  flow 
naturally  from  the  facts  proved  and  be  consistent  with  them 
aU.7 

It  is  not  sufficient  that  the  circumstances  proved  coincide 
with,  account  for,  and  therefore  render  probable,  the  hypothesis 
sought  to  be  established,  but  they  must  exclude  to  moral 
certainty  every  hypotliesis  but  the  single  one  of  guilt.^ 

The  evidence  is  always  insufficient,  where,  assuming  all  to 
be  proved  which  the  evidence  tends  to  prove,  some  other 
hypothesis  may  still  be  true ;  for  it  is  the  actual  exclusion  of 
every  hypothesis  which  invests  mere  circumstances  with  the 

1  People  V.  Padillia,  43  Cal.  535.  2  state  v.  Paxton,  126  Mo.  500. 

8  People  V.  Foley,  59  Mich.  553  ;  Houser  v.  State,  58  Ga.  78. 

*  Sumner  v.  State,  5  Blackf.  579  ;  Findley  v.  State,  5  Blackf.  576. 

5  Lopez  V.  State,  20  S.  W.  395.  And  see  Jeflferds  v.  People,  5  Park.  Cr. 
R.  522  ;  Turner  v.  State,  4  Lea,  206  ;  Yarbrough  v.  State  (Ala.),  16  So.  758  ; 
People  V.  Armstrong,  56  Cal.  397  ;  People  v.  Nelson,  85  Cal.  421. 

«  State  V.  Willingham,  33  La.  Ann.  537. 

■^  People  V.  Bennett,  49  N.  Y.  137  ;  Ward  v.  State,  10  Tex.  Crim.  App.  293. 

8  Burr.  Circ.  Ev.  p.  181  ;  State  v.  Moxley,  102  Mo.  374  ;  State  v.  Taylor, 
111  Mo.  538  ;  People  v.  Dick.  33  Cal.  213. 


302  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

force  of  proof.  Whenever  therefore  the  evidence  leaves  it  in- 
different which  of  several  hypotheses  is  true,  or  merely  estab. 
lishes  some  finite  probability  in  favor  of  one  hypothesis  rather 
than  another,  such  evidence  cannot  amount  to  proof,  however 
great  the  probability  may  be.^ 

The  true  test  by  which  to  determine  the  value  of  circum- 
stantial evidence,  in  respect  to  its  sufficiency  to  warrant  a 
conviction  in  a  criminal  case,  is,  not  whether  the  proof 
establishes  circumstances  which  are  consistent,  or  which  coin- 
cide with  the  hypothesis  of  the  guilt  of  the  accused,  but 
whether  the  circumstances  satisfactorily  established  are  of  so 
conclusive  a  character,  and  point  so  surely  and  unerringly  to 
the  guilt  of  the  accused  as  to  exclude  every  reasonable  hypoth- 
esis of  his  innocence.  The  force  of  circumstantial  evidence 
being  exclusive  in  its  character,  the  mere  coincidence  of  a 
given  number  of  circumstances  with  the  hypothesis  of  guilt, 
or  that  the}''  would  account  for,  or  concur  with,  or  render 
probable  the  guilt  of  the  accused,  is  not  a  reliable  or  admissible 
test,  unless  the  circumstances  rise  to  such  a  degree  of  cogency 
and  force,  as,  in  the  order  of  natural  causes  and  effect,  to  ex- 
clude, to  a  moral  certainty,  every  other  reasonable  hypothesis 
except  the  single  one  of  guilt.^ 

This  rule  was  thus  commented  on  by  that  admirable  lawyer, 
Rufus  Choate,  in  his  address  to  the  jury  in  the  famous  Dalton 
divorce  case :  ^  "  It  is  a  rule  that  may  be  called  a  golden  rule 
in  the  examination  and  application  of  this  kind  of  evidence 
which  we  call  circumstantial,  that  should  it  so  turn  out  that 
every  fact  and  circumstance  alleged  and  proved  to  exist  is 
consistent  on  the  one  hand  with  the  hypothesis  of  guilt,  and 
on  the  other  hand  consistent  reasonably  and  fairly  with  the 
hypothesis  of  innocence,  then  those  circumstances  prove  noth- 

1  stark  on  Ev.  (10th  Am.  Ed.)  859  ;  Wharton  v.  State,  12  So.  661  ;  Algheri, 
t'.  State,  25  Miss.  584.  It  is  not  therefore  sufficient  that  the  circumstances 
pointing  to  guilt  create  a  probabiUty — even  a  strong  probability — of  the 
guilt  of  the  accused.     Dreessen  v.  State,  38  Neb.  375. 

2  Binns  v.  State,  66  Md.  428  ;  Riley  v.  State,  88  Ala.  193  ;  Stout  v.  State, 
90  Ind.  1  ;  People  v.  Strong,  30  Cal.  157  ;  People  v.  Shuler,  28  Cal.  490 ; 
Cavender  v.  State,  126  Ind.  47  ;  Sumner  v.  State,  5  Blackf.  579  ;  The  Jane 
V.  U.  S.,  7  Cranch,  863  ;  Casey  v.  State,  20  Neb.  138  ;  State  v.  Maxwell,  42 
la.  208  ;  Com.  v.  Cobb,  14  Gray,  57  ;  State  v.  Ah  Kung,  17  Nev.  361  ;  State 
V.  Hunter,  32  Pac.  37  ;  State  v.  Davenport  (Ga.),  7  S.  E.  37. 

8  Before  the  Supreme  Judicial  Court  of  Massachusetts,  May,  1856. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    303 

ing  at  all.i  Unless  they  go  so  far  as  to  establish  a  necessary 
conclusion  of  this  guilt  which  they  offered  with  a  view  to 
establish,  they  are  utterly  worthless  and  ineffectual  for  the 
investigation  of  the  truth.  It  is  not  enough  that  the  circum- 
stances relied  on  are  plainly  and  certainly  proved.  It  is  not 
enough  to  show  that  they  are  consistent  with  the  hypothesis 
of  guilt.  They  must  also  render  the  hypothesis  of  innocence 
inadmissible,  and  impossible,  unreasonable,  and  absurd,  or  they 
have  proved  nothing  at  all." 

Evidence  which  satisfies  the  minds  of  the  jury  to  a  moral 
certainty  constitutes  full  proof.^  The  law  does  not  require 
that  guilt  shall  be  established  by  evidence  which  amounts  to 
mathematical  certainty.  Moral  certainty  is  all  that  can  be 
required.^ 

It  is  perhaps  well  to  set  out  here  some  of  the  most  com- 
mendable judicial  definitions  of  this  phrase,  "  moral  cer- 
tainty." When  the  jury  are  convinced  to  a  moral  certainty 
they  may  be  said  to  be  entirely  satisfied.* 

There  is  a  degree  of  doubt  which  belongs  to  all  human 
affairs.  One  may  sometimes  doubt  what  is  seen,  very  often 
what  is  heard ;  our  senses  often  deceive  us.  On  the  other 
hand  there  is  a  degree  of  certainty  with  which  we  are  com- 
pelled to  be  satisfied  in  the  most  serious  transactions  of  life ; 
and  as  no  higher  degree  of  certainty  is  ordinarily  attainable  in 
human  affairs,  it  is  that  degree  of  certainty  with  which  we 
must  be  satisfied  in  criminal  trials.^  The  jury  ought  to  have 
the  highest  degree  of  certainty  which  the  practical  business  of 
life  admits  of.^ 

Moral  certainty  is  a  certainty  that  convinces  and  directs  the 
understanding  and  satisfies  the  reason  and  judgment  of  those 
who  are  bound  to   act   conscientiously  upon  it.'     It  is  that 

1  3  Greenl.  on  Ev.  §  39,  n.  3  ;  State  v.  Flanagan,  26  W.  Va.  116. 

2  James  v.  State,  45  Miss.  572  ;  State  v.  Brown  (Kan.),  40  Pac.  1001. 

8  Giles  V.  State,  6  Ga.  276.  In  People  v.  Beck,  58  Cal.  212,  a  charge  that 
"  the  persuasion  of  guilt  produced  by  the  evidence  ought  to  amount  to 
almost  a  certainty,  or  such  a  certainty  as  convinces  the  minds  of  the  jury 
as  reasonable  men,"  was  held  not  to  be  erroneous,  though  unsatisfactory, 

*  State  V.  MiUing,  35  S.  C.  16  ;  People  v.  Padillia,  42  Cal.  535. 
6  Pollock,  C.  B.,  in  Reg.  v.  Exall,  supra. 

*  Reg.  V.  Kohl,  C.  C.  C,  Jan.  1865,  coram  Pollock,  C.  B. 

'  Com.  V.  Webster,  supra ;  James  v.  State,  45  Miss.  572  ;  State  v.  Orr,  64 
Mo.  339. 


304  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

degree  of  certainty  which  is  supported  by  reason  or  proba- 
bility, founded  on  the  experience  of  the  ordinary  course  of 
things,  and  must  be  reasonable  in  itself.^  And  it  has  been 
well  defined  as  that  state  of  the  judgment,  grounded  upon  an 
adequate  amount  of  appropriate  evidence,  which  induces  a  man 
of  sound  mind  to  act  without  hesitation  in  the  most  important 
concerns  of  human  life. 

In  cases  of  direct  credible  evidence,  that  degree  of  assurance 
immediately  and  necessarily  ensues  ;  but  in  estimating  the 
effect  of  circumstantial  evidence,  there  is  of  necessity  an  ulter- 
ior intellectual  process  of  inference  which  constitutes  an  essen- 
tial element  of  moral  certainty.  The  most  important  part  of 
the  inductive  process,  especially  in  moral  inquiries,  is  the  cor- 
rect exercise  of  the  judgment  in  drawing  the  proper  inference 
from  the  known  to  the  unknown,  from  the  facts  proved  to  the 
factum  x>robandum.  A  number  of  secondary  facts  of  an  incul- 
patory moral  aspect  being  given,  the  problem  is  to  discover 
their  casual  moral  source,  not  by  arbitrary  assumption,  but  by 
the  application  of  the  principles  of  experience  in  relation  to 
the  immutable  laws  of  human  nature  and  conduct.  It  is  not 
enough,  however,  that  a  particular  hypothesis  will  explain  all 
the  phenomena ;  nothing  must  be  inferred,  because,  if  true,  it 
would  account  for  the  facts ;  and  if  the  circumstances  are 
equally  capable  of  solution  upon  any  other  reasonable 
hypothesis,  it  is  manifest  that  their  true  moral  cause  is  not 
exclusively  ascertained,  but  remains  in  uncertainty ;  ^  and  they 
must  therefore  be  discarded  as  conclusive  presumptions  of 
guilt.  If  the  inculpatory  facts  and  circumstances,  in  any 
given  case,  are  capable  of  two  or  more  explanations,  one  of 
which  is  consistent  with  the  innocence  of  the  accused,  and  the 
other  consistent  only  with  his  guilt,  then  the  evidence  does  not 
fill  the  test  of  moral  certainty,  and  is  insufficient  to  support 
conviction.^  Every  other  reasonable  supposition  by  which  the 
facts  may  be  explained  consistently  with  the  hypothesis  of 
innocence  must  therefore  be  rigorously  examined  and  success- 
ively eliminated  ;  and  only  when  no  other  supposition  will 
reasonably  account  for  all  the  conditions  of  the  case,  can  the 
conclusion  of  guilt  be  legitimately  adopted.* 

1  Pharr  v.  State,  10  Tex.  Crim.  App.  485. 

2  Casey  v.  State,  20  Neb.  138.      ^  Pogue  v.  State,  13  Tex.  Crim.  App.  283. 
*  Mittermaier,  ut  supra,  cli.  59. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    305 

Although  the  mystery  of  the  crime  cannot  be  solved  from 
the  evidence  except  upon  the  supposition  of  the  defendant's 
guilt,  a  conviction  cannot  follow.  The  life  or  liberty  of  a  per- 
son cannot  be  legally  sacrificed  on  the  ground  that  it  is  only 
by  regarding  him  as  guilty,  that  an  explanation  is  afforded  of 
the  perpetration  of  a  proved  offence.^ 

In  a  case  before  the  Court  of  Justiciary  at  Edinburgh,  the 
Lord  Justice  Clerk  Cockburn  said  that  the  matter  might 
remain  most  mysterious,  wholly  unexplained  ;  they  might  not 
be  able  to  account  for  it  on  any  other  supposition  than  that  of 
the  prisoner's  guilt ;  but  that  still  that  supposition  or  inference 
might  not  be  a  ground  on  which  they  could  safely  and  satis- 
factorily rest  their  verdict  against  her.^ 

But  nevertheless  it  seems  hardly  possible  to  conceive  of  such 
a  state  of  facts.  If,  however,  the  hypothesis  fulfils  the 
required  conditions,  the  conclusion  is  no  longer  a  gratuitous 
assumption,  but  becomes,  as  it  were,  part  of  the  induction ; 
and  an  additional  test  is  obtained,  by  which,  as  by  the  applica- 
tion of  a  theorem  of  verification,  the  conclusion  may  be  tested, 
and,  if  true,  corroborated  and  confirmed  ;  since,  if  it  be  true, 
it  must  harmonize  with,  and  satisfactorily  account  for,  all  the 
facts,  to  the  exclusion  of  every  other  reasonable  hypothesis.^ 
In  accordance  with  these  sound  principles  of  reasoning  and 
inference,  Lord  Chief  Baron  Macdonald  said  that  he  had  ever 
understood  the  rule  as  to  circumstantial  evidence  to  be  that 
where  the  circumstances  are  true,  where  they  are  well  con- 
nected, where  they  support  each  other  in  a  clear  and  lucid 
manner,  and  where  they  cannot  reasonably  be  accounted  for 
unless  the  charge  be  true  that  is  imputed  to  the  prisoner,  then 
the  jury  were  justified  in  convicting  upon  that  evidence.*  On 
another  occasion  the  same  learned  judge  said  that  the  nature 
of  circmnstantial  evidence  was  this,  that  the  jury  must  be 
satisfied  that  there  is  no  rational  mode  of  accounting  for  the 
circumstances,  but  upon  the  supposition  that  the  prisoner  is 
guilty,^  Mr.  Baron  Alderson,  Math  more  complete  exactness, 
said  that  to  enable  the  jury  to  bring  in  a  verdict  of  guilty,  it 

1  Schtdsler  v.  State,  29  Ind.  394. 

2  Reg.  V.  Madeleine  Smith,  Rep.  ut  supra,  303. 
8  Mittermaier,  ut  supra,  ch.  59. 

*  Rex  V.  Smith,  for  arson,  ut  supra,  p.  30. 
6  Rex  V.  Patch,  Surrey  Spr.  Ass.,  1805. 


306  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

was  necessary,  not  only  that  it  should  be  a  rational  conviction, 
but  that  it  should  be  the  only  rational  conviction  which  the 
circumstances  would  enable  them  to  draw.^  In  Humphreys' 
case,  Lord  Meadowbank  said  to  the  jury  :  "  Your  duty  is  to 
consider  what  is  the  reasonable  inference  to  be  drawn  from 
the  whole  circumstances ;  in  short,  whether  it  is  possible  to 
explain  the  circumstances  upon  grounds  consistent  with  the 
innocence  to  the  panel,  or  whether,  on  the  contrary,  they 
do  not  necessarily  lead  to  a  result  directly  the  reverse."  ^ 

In  a  court  whose  judgments  have  always  been  entitled  to 
respect,  an  instruction  that  "  in  order  to  convict  circumstantial 
evidence  should  be  such  as  to  produce  nearly  the  same  degree 
of  certainty  as  that  which  arises  from  direct  testimony,  and  to 
exclude  a  rational  probability  of  innocence,"  was  some  years 
since  held  free  from  error.^  But  later  decisions  have  ques- 
tioned this  ruling  and  declared  the  instruction  to  be  of  ex- 
tremely doubtful  propriety.*  And  in  a  very  recent  case,  where 
the  question  came  directly  before  the  court,  a  similar  instruc- 
tion was  declared  erroneous,  as  in  such  case  the  jury  must  be 
satisfied  beyond  a  reasonable  doubt.^ 

And  there  is  no  such  rule  for  estimating  the  weight  of  cir- 
cumstantial evidence  as  that  the  circumstances  necessary  to 
convict  must  be  as  strong  as  the  testimony  of  one  credible  eye- 
witness who  swears  positively  that  the  prisoner  did  commit 
the  offence.**  On  the  contrary,  it  is  proper  to  instruct  that 
where  the  evidence  is  not  only  consistent  with  the  guilt  of  the 
defendant,  but  inconsistent  with  any  other  rational  conclusion, 
the  jury  should  convict,  notAvithstanding  such  evidence  may 
not  be  as  satisfactory  as  the  direct  testimony  of  credible  eye- 
witnesses.'^ 

The  phrase  "  absolute  moral  certainty  "  is  disapproved.  It 
excludes  not  only  reasonable  doubt,  but  all  doubt.^   It  suggests 

1  Rex  V.  Hodges,  2  Lewin's  C.  C.  227.        ^  Swinton's   Rep.  ui  supra,  353. 

8  People  V.  Craine,  34  Cal.  191,     And  see  People  v.  Padillia,  42  Cal.  535. 

*  People  V.  Eckman,  72  Cal.  582  ;  People  v.  Sansome,  84  Cal.  449. 

6  State  V.  Ryan,  12  Mont.  297. 

«  State  V.  Coleman,  22  La.  Ann.  455  ;  State  v.  Allen,  103  N.  C.  433  ;  State 
V.  Norwood,  74  N.  C.  247  ;  State  v.  Gee,  92  N.  C.  756  ;  Banks  v.  State,  72 
Ala.  522  ;  Mickle  v.  State,  27  Ala.  20  ;  Faulk  v.  State,  52  Ala.  415  ;  State  v. 
Carson  (N.  C),  20  S.  E.  324. 

">  State  V.  Slingerland,  19  Nev.  135. 

8  State  V.  Glass,  5  Ore.  73  ;  State  v.  Hogard,  12  Minn.  293. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    307 

a  degree  of  certainty  greater  than  moral  certainty,  and  a 
court  is  justified  in  refusing  to  give  an  instruction  containing 
such  phrase.^ 

Evidence  may  not  be  sufficient  to  produce  in  the  minds  of  a 
jury  an  ahsolute  certainty  of  the  defendant's  guilt,  nor  to  prove 
that  he  had  any  motive  to  commit  the  crime  charged,  and  yet 
be  strong  enough  to  satisfy  the  jury  beyond  a  Teasonahle  doubt 
that  he  was  guilty .^ 

A  presumption  may  be  applied  when  the  circumstances  are 
such  as  to  render  the  opposite  hypothesis  improbable.  If  the 
latter  be  rendered  exceedingly  remote  and  improbable,  and 
morally,  though  not  absolutely,  impossible,  the  former  is  estab- 
lished as  morally  true.^ 

It  is  common  to  charge  that  the  State  must  make  out  a  case 
against  the  prisoner  beyond  a  reasonable  doubt,*  or  that  the 
circumstances  must  be  such  as  to  satisfy  the  jury  beyond  a 
reasonable  doubt  of  the  defendant's  guilt,^  or  that  if  the  jury 
are  satisfied  beyond  a  rational  doubt  of  guilt  they  must  con- 
vict.^ And  the  defendant  had  no  ground  of  complaint  in  an 
instruction  which  charged  in  effect  that  the  evidence  must  be 
sufficient  in  law  to  remove  all  reasonable  doubt ;  that  if  there 
was  any  other  reasonable  hypothesis  upon  which  it  could  be 
placed,  then  there  would  be  room  for  reasonable  doubt,  and  if 
they  had  a  reasonable  doubt,  it  was  their  duty  to  give  the  de- 
fendant the  benefit  of  it  and  to  acquit  him  ;  but  whether  the 
testimony  be  positive  or  circumstantial,  if  it  removed  from 
their  minds  all  such  reasonable  doubt,  then  it  would  be  suffi- 
cient to  authorize  them  to  convict  J  But  to  convince  beyond 
a  reasonable  doubt,  the  circumstances  must  exclude  to  a  moral 
certainty  every  other  hypothesis  but  the  single  one  of  guilt.^ 

A  charge  that  the  defendant  should  be  found  not  guilty 
unless  the  evidence  against  him  was  such  as  to  exclude  to  a 

1  People  V.  Davis,  64  Cal,  440.  2  Sumner  v.  State,  5  Blackf.  579. 

8  Chisholm  v.  State,  45  Ala.  66.  But  where  it  had  been  charged  that 
"the  circumstances  relied  upon,  taken  together,  must  be  of  a  conclusive 
nature,  leading  on  the  whole  to  an  absolute  certainty  in  the  minds  of  the 
jury  that  the  defendant  is  guilty  beyond  a  reasonable  doubt,"  this  was  ap- 
proved.    Taylor  v.  State,  3  Tex.  Crim.  App.  169. 

*  Houser  v.  State,  58  Ga.  78. 

5  Phipps  V.  State,  3  Cold.  344  ;  Schoolcraft  v.  People,  117  111.  271. 

«  State  V.  Frank,  5  Jones'  L.  384.  '  Bryan  v.  State,  74  Ga.  393. 

8  Black  V.  State,  1  Tex.  Crim.  App.  368. 


308  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

moral  certainty  every  supposition  but  that  of  guilt,  is  properly 
explained  by  the  further  statement  that  the  jury  must  b*. 
satisfied  beyond  a  reasonable  doubt  of  the  defendant's  guilt.^ 

The  phrases,  "  proof  to  a  moral  certainty,"  and  "  proof 
beyond  a  reasonable  doubt,"  are  synonymous  ;  each  signifies 
such  proof  as  satisfies  the  judgment  and  consciences  of  the 
jury,  as  reasonable  men,  and  applying  their  reason  to  the  evi- 
dence before  them  that  the  crime  charged  has  been  committed 
by  the  defendant,  and  so  satisfies  them  as  to  leave  no  other 
reasonable  conclusion  possible.^ 

If  the  jury  are  not  morally  certain  of  every  fact  necessary 
to  guilt,  they  cannot  be  said  to  be  without  reasonable  doubt.^ 
But  it  is  erroneous  to  instruct  that  persons  sometimes  say 
they  are  morally  certain  of  the  existence  of  a  fact  or  facts,  but 
have  not  the  evidence  to  prove  it,  and  that  this  is  the  condition 
of  mind  one  is  in  when  convinced  beyond  a  reasonable  doubt.* 

Reasonable  certainty  implies  the  absence  of  reasonable 
doubt ;  and  telling  the  jury  that  they  must  be  con\anced  of  a 
fact  with  reasonable  certainty  is  almost,  if  not  quite,  the  same 
as  telling  them  that  they  must  be  convinced  of  it  beyond  a 
reasonable  doubt.^ 

Where  the  jury  were  told  that  the  evidence  must  show  the 
guilt  of  the  defendant  to  their  reasonable  satisfaction,  that 
their  best  judgments  must  be  that  the  defendants  were  guilty, 
so  that  the  mind  might  rest  easy  in  the  conclusion  of  guilt,  it 
was  unnecessary  to  charge  that  guilt  must  be  shown  beyond 
reasonable  doubt.^ 

And  the  court,  having  charged  that  guilt  must  be  proved  to 
the  exclusion  of  all  reasonable  doubt,  and  that  if  the  testimony 
could  be  reconciled  with  any  other  rational  theory  than  guilt 
they  should  acquit,  may  decline  to  charge  that  guilt  must  be 
proved  to  a  moral  certaintyJ 

It  is  always  safer  to  lay  down  familiar  rules  of  this  character 
in  language  universally  approved,  than  to  undertake  to  give  a 
new  version  in  more  doubtful  language.^ 

1  Turbeville  v.  State,  40  Ala.  715. 

2  Com.  V.  Costley,  118  Mass.  1  ;  Ryan  r.  State,  83  Wis.  486.  And  see 
Carlton  v.  People  (111.),  37  N.  E.  244.  3  Williams  v.  State,  52  Ala.  411. 

*  Heldt  V.  State,  20  Neb.  493.     And  see  Young  v.  State,  95  Ala.  4. 

6  McBee  v.  Bawman,  89  Tenn.  132. 

^  Purkey  v.  State,  3  Heisk.  26  ;  Lawless  v.  State,  4  Lea,  173. 

^  Hall  V.  People,  39  Mich.  717.  **  Turner  v.  State,  4  Lea,  206. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    309 

In  trying  a  case  depending  upon  circumstantial  evidence 
very  few  abstract  principles  should  be  given  to  the  jury. 
Left  to  exercise  their  common  sense  in  their  own  way,  the  jury 
will  generally  determine  correctly  what  is  well  proved,  and 
what  lacks  further  support.  Furnished  Avith  a  superfluity 
of  rules,  their  attention  is  distracted,  and  the  proffered  help 
only  obstructs.  The  better  practice  is  to  decline  charging 
refined  speculations,  and  give  only  sharp-cut  law.  "What  shall 
come  to  the  jury  as  evidence  is  for  the  court ;  what  it  is  worth 
is  for  the  jury.  They  can  discern  its  true  value  with  spare  as- 
sistance from  the  bench.^ 

It  is  a  settled  rule  of  practice  in  Texas  that  Avhere  the  evi- 
dence is  wholly  circumstantial,  the  court  must,  whether  asked 
to  or  not,  instruct  the  jury  as  to  the  nature  and  conclusiveness 
of  that  character  of  evidence.^  And  a  judgment  of  conviction 
will  be  reversed  because  of  failm-e  to  comply  with  this  rule, 
though  there  is  no  probability  that,  had  the  charge  been  given, 
the  result  would  have  been  different.^  This  rule  holds  good 
though  the  corpus  delicti  is  proved  by  positive  testimony,  if 
the  evidence  tending  to  fix  the  guilt  upon  the  prisoner  is 
wholly  ch'cumstantial.*  But  where  a  case  is  not  dependent 
alone,  or  in  a  controlling  degree,  upon  circumstantial  evidence, 
a  special  charge  is  not  required.^  Where  there  is  direct  evi- 
dence of  the  main  fact  and  the  circumstantial  evidence  ad- 
duced is  merely  in  corroboration,  the  court  is  not  required  to 


»  Bleckley,  J.,  in  Monghan  v.  State,  57  Ga.  103. 

3  Allen  V.  State,  16  Tex.  Crim.  App.  337  ;  Thomas  v.  State,  13  Id.  493  ; 
Faulkner  v.  State,  15  Id.  115  ;  Kenneda  v.  State,  16  Id.  258 ;  Ramirely  v. 
State,  20  Id.  133  ;  Lee  v.  State,  14  Id.  26G  ;  Harrison  v.  State,  6  Id.  42 ; 
Jackson  v.  State,  20  Id.  190  ;  Ray  v.  State,  13  Tex.  Crim.  App.  51  ;  Barr  ?-. 
State,  10  Id.  507  ;  Black  v.  State,  18  Id.  131 ;  Murphy  v.  State,  17  Id.  645  ; 
Crowley  v.  State,  26  Id.  578. 

3  Counts  v.  State,  19  Tex.  Crim.  App.  450  ;  Cooper  v.  State,  16  Id.  341 ; 
Daniels  v.  State,  14  S.  AV.  395. 

*  Eckert  v.  State,  9  Tex.  Crim.  App.  105.  Where  tlie  pressure  of  the  case 
is  not  upon  the  corpus  delicti  which  has  been  clearly  proven,  but  upon  the 
question  who  is  guilty  party,  and  all  the  evidence  inculpating  accused  is 
circumstantial,  it  is  error  for  the  court  to  instruct  that  the  case  is  not 
founded  altogether  in  circumstantial  evidence.  Simmons  v.  State,  95  Ga. 
224. 

6  Tooney  v.  State,  8  Tex.  Crim.  App.  452  ;  Bimtain  v.  State,  15  Id.  515  ; 
Mackey  v.  State,  20  Id.  603  ;  House  v.  State,  19  Id.  227  ;  Sharp  v.  State,  17 
Id.  486 ;  Clare  v.  State,  26  Id.  634  ;  Leeper  v.  State,  29  Id.  154. 


310  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

charge  the  law  on  the  latter  kind  of  evidence.^  An  omis- 
sion to  charge  must  be  excepted  to  at  the  time.^  A  charge 
to  a  jury  is  perfectly  unexceptionable  only  when  the  judge 
confines  himself  to  the  duty  of  setting  forth  the  law  appli- 
cable to  the  case,  without  expressing  or  intimating  any  opinion 
as  to  the  weight  of  the  evidence,  or  the  credibility  of  the 
statements  made  of  the  party  accused  or  of  the  witness.^  A 
statement  that  the  State  relies  on  circumstantial  evidence, 
introductory  to  an  instruction  as  to  the  cogency  of  such 
evidence,  is  not  a  charge  as  to  the  weight  of  evidence.*  But 
the  following  charge  has  been  held  to  be  upon  the  weight 
of  evidence  and  therefore  improper :  "  Circumstantial  evi- 
dence, when  fully  and  clearly  made  out,  is  sufficient  to  sus- 
tain a  conviction  of  crime ;  but  the  circumstances  must  not  be 
of  a  vague,  indefinite,  shadowy  character,  and  the  facts  con- 
stituting the  chain  must  be  clearly  defined.  In  cases  depend- 
ing upon  circumstantial  evidence,  the  mind  seeks  to  explore 
every  possible  source  from  which  any  light,  however  feeble, 
may  be  derived;  and  it  is  peculiarly  proper  that  the  jury 
should  have  before  them  every  fact  and  circumstance,  however 
slight."  5 

A  charge  need  not  be  couched  in  any  particular  set  words 
or  phrases  :  if  the  ideas  are  sufficient  and  so  expressed  that  the 
jury  can  readily  comprehend  the  meaning  of  the  language 
used,  the  demands  of  the  law  are  satisfied.'' 

But  a  charge  that  "  in  order  to  convict  on  circumstantial  evi- 
dence the  circumstances  must  be  so  connected  as  to  exclude 
every  reasonable  hypothesis  but  guilt  of  defendant,"  has  been 
held  not  to  be  sufficiently  full  and  specific  to  enable  the  jury 
to  understand  and  apply  the  rules  applicable  to  circumstantial 
evidence. 

1  Wooldridge  v.  State,  13  Tex.  Crim.  App.  443. 

3  Cunningham  v.  State,  20  Tex.  Crim.  App.  162.  But  see  Bishop  i\  State, 
43  Tex.  390,  where  it  was  said  that  the  question  of  the  failure  of  the  court 
to  charge  the  law  of  circumstantial  evidence  may  properly  be  raised  and 
availed  of  for  the  first  time  on  motion  for  a  new  trial.  See  also  Mont- 
gomery V.  State,  13  Tex.  Crim.  App.  669. 

8  Brown  v.  State,  23  Tex.  195  ;  Ross  v.  State,  29  Id.  50  ;  Merritt  v.  State, 
2  Tex.  Crim.  App.  177  ;  McCleskey  v.  State,  13  S.  W.  997. 

*  Reynolds  v.  State,  17  Tex.  Crim.  App.  413. 

^  McCleskey  v.  State,  supra.  ^  Rye  v.  State,  8  Tex.  Crim.  App.  153. 

7  Bryant  v.  State,  16  Tex.  Crim.  App.  144.  And  see  State  v.  Taylor,  111 
Mo.  588. 


' 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    311 

And  a  charge  that  to  justify  a  conviction  "  the  facts  relied  on 
must  be  absolutely  incompatible  with  the  defendant's  in- 
nocence and  incapable  of  explanation  upon  any  other  reason- 
able hypothesis  than  that  of  guilt,"  although  abstractly  correct 
as  far  as  it  goes,  is  erroneous  in  that  it  does  not  aid  the  jury  in 
determining  what  weight  should  be  given  to,  and  upon  what 
hypothesis  they  could  be  authorized  to  convict  in  view  of  such 
evidence.^ 

The  following  charge  was  sustained :  "  In  order  to  warrant 
a  conviction  of  a  crime  on  circumstantial  evidence,  each  fact 
necessary  to  the  conclusion  sought  to  be  established  must  be 
proven  by  competent  evidence  beyond  a  reasonable  doubt. 
All  the  facts  (that  is,  the  facts  necessary  to  the  conclusion)  ^ 
must  be  consistent  with  each  other  and  with  the  main  fact 
sought  to  be  proved ;  and  the  circumstances,  taken  together, 
must  be  of  a  conclusive  nature,  leading  on  the  whole  to  a  satis- 
factory conclusion,  and  producing,  in  effect,  a  reasonable  and 
moral  certainty  that  defendant  and  no  other  person  committed 
the  offence  charged,  and  unless  the  evidence  does  so  you  will 
acquit  the  defendant.  But  if  the  evidence  does  satisfy  the  un- 
derstanding, reason,  and  conscience  of  the  jury,  and  produces 
in  their  minds  a  reasonable  and  moral  certainty  of  the  guilt  of 
the  defendant  beyond  a  reasonable  doubt,  and  to  the  exclusion 
of  every  other  reasonable  hypothesis  than  that  of  guilt,  then 
the  jury  should  convict  the  defendant."  ^  The  last  sentence, 
however,  is  not  usual. 

The  following  cases  will  illustrate  the  application  of  the  im- 
portant rule  which  we  have  had  under  consideration  : 

In  a  case  of  burglary,  articles  stolen  from  the  burglarized 
house  were  found,  two  or  three  weeks  after  the  burglary,  some 
in  the  defendant's  possession,  and  some  at  a  place  which  had 
been  occupied  by  some  one  as  a  camping-place.  The  court 
thought  it  as  reasonable  to  suppose  that  the  defendant  had  taken 
the  articles  from  the  camping-place  where  the  one  who  had 
burglarized  the  house  had  carried  them.* 

1  Williamson  v.  State,  30  Tex.  Crim.  App.  330.  And  see  Bookser  v.  State, 
26  Tex.  Crim.  App.  593. 

»  Gallaher  v.  State,  28  Tex.  dim.  App.  247. 

»  Rains  v.  State  (Ind.),  36  N.  E.  532  ;  KoUock  v.  State  (Wis.),  60  N.  W. 
817  ;  Hocker  v.  State  (Tex.  Crim.  App.),  30  S.  W.  873. 

*  Finlan  v.  State,  13  S.  W.  866. 


313  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

In  a  case  where  the  defendant  was  indicted  for  murder,  the 
hypothesis  of  the  defendant's  guilt  was  supported  l^y  the  fol- 
lowing circumstances :  1.  The  defendant  was  the  last  person 
seen  with  the  deceased  on  the  night  of  the  tragedy.  2.  Deceased 
was  heard  to  address  a  remark  to  the  defendant  on  that  night, 
at  or  near  the  place  where  the  dead  body  of  the  former  was 
found  on  the  next  morning.  3.  Defendant  was  seen  alone 
that  night  after  the  time  when  the  deceased  was  supposed  to 
have  been  killed,  and  appeared  to  be  lost  and  drunk,  and,  as 
sworn  by  one  witness,  exhibited  a  reluctance  to  let  himself  be 
seen.  4.  The  dead  body  of  deceased  was  found  on  the  next 
morning  with  wounds  upon  it,  and  one  mortal  wound  which 
had  the  appearance  of  having  been  inflicted  with  some  sharp 
instrument.  Defendant  had  a  knife  in  his  possession.  5.  The 
dead  body  was  found  near  where  the  deceased  and  defendant 
were  last  known  to  be  together.  6.  The  defendant  and  de- 
ceased when  last  seen  were  on  horseback.  A  nd  when  the  dead 
body  was  found  the  tracks  of  two  horses  were  found  near  it, 
and  the  riders  appeared  to  have  been  engaged  in  a  struggle. 
7.  The  defendant,  when  asked  where  he  had  left  the  deceased, 
said  :  "  I  thought  I  left  him  over  yonder,  I  might  have  left  him 
along  here ;  I  was  pretty  drunk."  8.  He  had  been  heard  to 
remark  that  "  Money  was  the  end  of  the  law  and  he  had  it." 
9.  He  had  been  heard  to  remark  that  he  would  not  have  his 
horse  talk  for  $1,000.  The  hypothesis  of  innocence  was  sup- 
ported by  the  following  circumstances:  1.  Defendant  and 
deceased  were  friends,  and  defendant  had  no  motive  for  killing 
the  deceased.  2.  The  fact  that  defendant  was  drunk  might 
account  for  his  otherwise  singular  conduct,  and  his  want  of 
knowledge  as  to  where  he  left  deceased.  3.  From  all  that  ap- 
peared, deceased  might  have  killed  himself.  4.  Some  other 
person  might  have  come  up  Avith  deceased  and  killed  him  after 
the  defendant  left  him,  for  a  witness  testified  that  she  heard  a 
voice  addressing  the  deceased  near  the  place  of  killing  and  did 
not  think  it  was  the  defendant's  voice.  5.  If  defendant  did 
kill  deceased  he  might  have  been  acting  in  self-defence,  as  de- 
ceased was  armed  with  an  iron  rod,  and  there  were  evidences 
of  a  struggle.  6.  Defendant  had  no  blood-stains  on  his  clothes. 
T.  He  did  not  attempt  to  flee  the  country  but  attended  the  in- 
quest next  day.  8.  He  showed  surprise  when  informed  of  the 
death  of  the  deceased. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   313 

It  was  held  that,  taking  all  the  testimony  together,  it  did  not 
come  up  to  the  standard  of  moral  certainty,  and  did  not  exclude 
every  reasonable  hypothesis  save  that  of  guilt,  and  judgment 
was  reversed.^ 

It  appeared  on  a  trial  for  murder  that  the  deceased  had  come 
to  his  death  by  a  knife-stab  in  the  throat.  The  defendant  and 
another  had  been  overheard  asking  the  deceased  for  a  loan  of 
money.  On  the  deceased's  refusing  the  request  the  defendant 
had  said  :  "  I  will  lay  your  body  down  and  have  all  your  money 
by  morning."  Shortly  after  a  witness  saw  the  defendant  in  an 
out-of-the-way  place,  near  to  the  spot  where  the  body  was 
afterwards  found,  opening  a  knife,  and  was  asked  by  him  in 
what  direction  the  deceased  had  gone.  A  knife  was  exhibited, 
on  which  a  physician  testified  that  he  had  found  dried  blood, 
and  another  witness  testified  that  the  knife  belonged  to  him, 
but  that  he  had  loaned  it  to  the  defendant  shortly  before  the 
time  of  the  murder,  and  that  it  had  been  brought  back  and  put 
in  his  pocket  while  he  was  asleep.  But  several  witnesses  swore 
that  they  were  with  the  defendant  and  the  last  witness  when 
the  knife  was  said  to  have  been  loaned,  and  that  no  such  trans- 
action took  place.  A  conviction  was  had,  but  on  appeal  the 
judgment  was  reversed  for  insufficiency  of  the  evidence.^ 

In  a  case  already  cited,^  the  accused  was  charged  Avith  the 
larceny  of  a  watch  and  chain.  The  complaining  witness  testi- 
fied that  he  was  standing  in  the  rear  platform  of  a  crowded 
street  car  in  which  were  also  the  accused  and  two  others ;  that 
when  the  car  stopped  to  let  off  a  passenger,  these  three  men 
pressed  up  against  him  so  almost  to  press  him  over  the  rail,  and 
that  shortly  after  the  three  left  the  car  together,  and  within 
half  a  minute  thereafter  the  witness  missed  his  watch.  On 
this  evidence  the  jury  returned  a  verdict  of  guilty. 

Where  a  woman  was  tried  for  having  murdered  her  child, 
the  following  evidence  developed  at  the  trial  was  held  suffi- 
cient to  exclude  every  other  reasonable  hypothesis  but  that  of 
guilt.  The  defendant  was  seen  one  day  in  an  advanced  state 
of  pregnane}'',  and  in  a  few  days  thereafter  showed  no  signs  of 
pregnancy.  She  denied,  however,  that  she  had  given  birth  to 
a  child.     But  there  was  no  other  woman  in  the  neighborhood 

1  Pogue  V.  State,  12  Tex.  Crim.  App.  283. 

2  Pullen  V.  State,  28  Tex.  Crim.  App.  114. 

3  People  V.  Sands,  5  N.  Y.  Cr.  R.  261.  '% 


314  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

SO  far  advanced  in  pregnancy.  A  great  amount  of  blood  was 
found  on  her  bed-clothes  and  mattress,  and  she  was  shortly 
afterwards  seen  washing  her  clothes  which  were  very  bloody, 
and  refused  to  say  whose  clothes  they  were  ;  she  refused  to  give 
any  explanation  of  these  facts.  The  body  of  the  child  was 
found  in  a  dry  well  within  25  or  30  yards  of  the  defendant's 
house.^ 

Where  the  evidence,  wholly  circumstantial,  has  weak  places 
but  is  not  absolutely  insufficient,  and  upon  which,  reasoning 
fairly  and  impartially,  different  minds  could  arrive  at  opposite 
conclusions,  and  two  juries  have  returned  a  verdict  of  guilty, 
the  Supreme  Court  will  not,  on  mere  doubts,  overturn  the 
verdict.^ 

It  follows  as  a  consequence  of  this  rule,  that  wherever  several 
persons  are  jointly  charged  with  any  offence,  joint  complicity 
must  be  proved.  In  the  case  of  the  two  Mannings  their  counsel 
severally  endeavored  to  throw  the  guilt  exclusively  on  the  other ; 
and  Lord  C.  B.  Pollock  told  the  jury  that  if  they  thought  one 
of  the  prisoners  was  guilty,  but  could  not  possibly  decide  which 
was  the  guilty  party,  they  might  be  reduced  to  the  alternative 
of  returning  a  verdict  of  not  guilty  as  to  both  ;  but,  that  if, 
looking  at  the  whole  transaction,  they  came  to  the  conclusion 
that  both  must,  according  to  the  ordinary  course  of  human 
affairs,  have  been  concerned  in  the  murder,  it  Avould  be  their 
duty  to  find  both  the  prisoners  guilty .^ 

A  learned  ^vriter  thinks  that  almost  all  writers  have  at- 
tempted to  estimate  the  force  of  evidence  upon  a  wrong  prin- 
ciple ;  that  the  true  principle  is  to  estimate  its  value  entirely 
by  the  effect  which  it  does  in  fact  produce  upon  the  minds  of 
those  who  hear  it,  and  that  the  value  of  evidence  is  measured 
exactly  by  the  state  of  mind  which  it  produces,  as  a  force  is 
measured  by  the  weight  which  it  will  lift.'*  But,  not  to  dwell 
upon  the  fallacy  of  every  attempt  to  compare  the  conclusion 
of  moral  reasoning  with  the  constrained  and  inevitable  conse- 
quence of  mechanical  force,  this  would  be  to  give  up  a  safe, 
practical,  and  philosophic  test,  the  validity  and  sufficiency  of 

1  Echols  V.  State,  81  Ga.  696. 

2  Monghan  v.  State,  59  Ga.  308. 

8  Reg.  V.  Manning  and  wife,  C.  C.  C,  Oct.  1849. 

*  See  an  able  and  interesting  essay  on  the  characteristics  of  English  Law, 
Camb.  Ess.  1857,  p.  27. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CON^^ICT.    315 

which  are  recognized  in  every  other  branch  of  philosophical 
and  scientific  research,  for  an  indeterminate  and  empirical  re- 
sult incapable  of  independent  verification,  and  would  virtually 
justify  the  most  erroneous  determinations  of  the  tribunals. 

With  regard  to  the  amount  of  proof  which  is  required  to 
establish  the  defence  of  alibi  or  the  defence  of  insanity  there 
has  been  much  discussion,  and  the  cases  are  not  at  all  har- 
monious. Indeed,  the  distinction  between  the  burden  of  proof 
and  the  quantum  of  proof  does  not  seem  to  have  been  always 
clearly  borne  in  mind. 

In  Iowa  the  defendant  must  prove  a  defence  of  alihi  by  a 
preponderance  of  evidence,  because,  as  is  said,  the  knowledge 
of  the  truth  of  it  and  the  means  of  loiowing  it  are  peculiarly 
with  him.^ 

And  an  instruction  proceeding  on  the  theory  that  the 
established  fact  of  an  alibi  (if  it  were  established)  would  be  a 
fact  to  be  considered  in  connection  with  other  facts  and  cir- 
cumstances is  improper .2  But  where  the  com-t  has  instructed 
generally  as  to  reasonable  doubt,  no  special  instruction  need 
be  given  as  to  alihi? 

Preponderance  of  evidence,  says  the  Supreme  Court  of 
South  Carolina,  is  the  lowest  degree  capable  of  producing  con- 
viction. Less  cannot  be  required  of  one  whose  duty  it  is  to 
establish  a  particular  fact,  subject,  of  course,  to  the  general 
rule  that  a  party  charged  with  crime  is  entitled  to  the  benefit 
of  all  reasonable  doubts.* 

In  Webster's  case^  the  defence  attempted  to  show  that  on 
the  day  after  the  murder  was  alleged  to  have  been  committed 
the  deceased  was  seen  alive  on  a  street  of  his  native  city.  If 
this  could  have  been  clearly  made  out  the  defendant  would,  of 
course,  have  been  entitled  to  an  acquittal.  Concerning  this 
matter  the  charge  of  Chief  Justice  Shaw  was  as  follows: 
"  We  now  come  to  consider  that  ground  of  defence  on  the 
part  of  the  defendant  which  has  been  denominated,  not,  per- 
haps, with  precise  legal  accuracy,  an  alibi^  that  is,  that  the 
deceased  was  seen  elsewhere  out  of  the  medical  college  after 

^  State  V.  Beasley,  84  la.  83  ;  State  v.  Hamilton,  57  la.  596  ;  State  v. 
Keedson,  57  la.  588 ;  State  v.  Northrup,  48  la.  583  ;  State  v.  Kline,  54  la. 
183  ;  State  v.  Red,  53  la.  69  ;  State  v.  Haddin,  46  la.  623. 

2  State  V.  McCracken,  66  la.  569.  3  state  r.  Sutton,  70  la.  2G8. 

*  State  V.  Nance,  25  S.  C.  168  ;  State  v.  Pavdk,  18  S.  C.  514. 

5  5  Cash.  296. 


316  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

the  time  when,  by  the  theory  of  proof  on  the  part  of  the  pros- 
ecution, he  is  supposed  to  have  lost  his  life  at  the  medical 
college.  It  is  like  the  case  of  an  alibi  in  this  respect,  that  it 
proposes  to  prove  a  fact  which  is  repugnant  to,  and  inconsistent 
with,  the  facts  constituting  the  evidence  on  the  other  side,  so 
as  to  control  the  conclusion,  or  at  least  render  it  doubtful,  and 
thus  lay  the  ground  of  an  a.cquittal.  And  the  court  are  of 
opinion  that  this  proof  is  material ;  for  although  the  time 
alleged  in  the  indictment  is  not  material,  and  an  act  done  at 
another  time  would  sustain  it,  yet  in  point  of  evidence  it  may 
become  material ;  and  in  the  present  case,  as  all  the  circum- 
stances shown  on  the  other  side,  and  relied  upon  as  proof,  tend 
to  the  conclusion  that  Dr.  Parkman  was  last  seen  entering  the 
medical  college  and  that  he  lost  his  life  therein,  if  at  all,  the 
fact  of  his  being  seen  elsewhere  afterwards  would  be  so  incon- 
sistent with  that  allegation,  that,  if  made  out  by  satisfactory 
proof,  we  think  it  would  be  conclusive  in  favor  of  the  de- 
fendant. Both  are  affirmative  facts,  and  the  jury  are  to  decide 
upon  the  weight  of  evidence.  "When  you  are  called  upon  to 
consider  the  proof  of  any  particular  fact,  you  will  consider 
the  evidence  which  sustains  it,  in  connection  with  that  which 
makes  the  other  way,  and  be  governed  by  the  weight  of  the 
proof.  Proof  which  would  be  quite  sufficient  to  sustain  a 
proposition,  if  it  stood  alone,  may  be  encountered  by  such  a 
mass  of  opposite  proof  as  to  be  quite  overbalanced  by  it.  In 
the  ordinary  case  of  an  alihi,  when  a  party  charged  with  crime 
attempts  to  prove  that  he  was  in  another  place  at  the  time,  all 
the  evidence  tending  to  prove  that  he  committed  the  offence 
tends  in  the  same  degree  to  prove  that  he  was  at  the  place 
when  it  was  committed.  If,  therefore,  the  proof  of  the  alihi 
does  not  outweigh  the  proof  that  he  was  at  the  place  when  the 
offence  was  committed,  it  is  sufficient." 

It  has  been  recently  said  ^  that  the  weight  of  authority  is 
settled  that  where  an  alibi  is  relied  upon  as  a  defence  the 
burden  of  proof  rests  upon  the  defendant  to  establish  it  to  the 
satisfaction  of  the  jury.  But  the  instruction  sustained  told  the 
jury  that  "  if  they  believed  that  the  evidence  clearly  sus- 
tained the  defence,  or  if  it  raised  in  their  minds  a  reasonable 
doubt  as  to  the  guilt  of  the  defendant,  they  must  acquit  him." 
It  may  be  remarked  that  proving  to  the  satisfaction  of  the  jury 

1  By  the  Supreme  Court  of  New  Mexico,  in  Terr.  v.  Trujillo,  33  Pac.  154. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   31^ 

that  the  defendant  was  elsewhere  at  the  time  of  the  conunission 
of  the  crime  is  not  the  same  thing  as  raising  in  their  minds  a 
reasonable  doubt  of  his  guilt. 

The  rule  in  Georgia  is  formulated  by  the  Supreme  Court  of 
that  State  in  a  head-note  to  the  case  of  Harrison  v.  State^  and  is 
said  to  consist  of  two  branches :  First,  that  to  overcome  proof 
of  guilt  strong  enough  to  exclude  all  reasonable  doubt,  the  onus 
is  on  the  accused  to  verify  his  alleged  «Z^'J^,  to  the  reasonable 
satisfaction  of  the  jury ;  second,  that,  nevertheless,  any  evi- 
dence whatever  of  allhl  is  to  be  considered  in  the  general  case 
with  the  rest  of  the  testimony,  and  if  a  reasonable  doubt  of 
guilt  be  raised  b}^  the  evidence  as  a  whole  the  doubt  must  be 
given  in  favor  of  innocence.^ 

If  the  defendant  fails  to  prove  it  to  the  satisfaction  of  the 
jury,  the  alleged  alibi  as  a  substantive  defence  is  valueless ;  but 
that  does  not  deprive  him  of  the  benefit  of  his  evidence  on  the 
subject  so  far  as  it,  in  connection  with  other  testimony  in  the 
case,  may  have  a  tendency  to  create  a  reasonable  doubt  as  to 
his  guilt.^ 

Whatever  tends  to  support  one  theory,  tends  in  the  same 
degree  to  rebut  and  overthrow  the  other,  and  it  is  for  the  jury 
to  decide  which  is  the  truth.^  And  the  prevailing  view  seems 
to  be  that  proof  of  an  aVibi  is,  as  it  were,  a  traverse  of  the 
crime  charged,  and  that  proof  tending  to  estabhsh  it,  though 
insufficient  of  itself  to  establish  that  fact,  is  not  to  be  excluded 
from  the  case.  If  its  weight,  alone,  or  added  to  that  of  other 
evidence  in  the  case,  be  sufficient  to  reduce  belief  in  the  minds 
of  the  jury  as  to  the  defendant's  guilt,  to  a  reasonable  doubt, 
they  should  acquit.*  If  the  defendant's  evidence  is  sufficient 
to  raise  a  reasonable  doubt,  or  if  the  State's  evidence  is  so  de- 
fective as  to  cause  a  reasonable  doubt,  or  if,  taking  all  the  evi- 
dence on  both  sides,  there  is  a  reasonable  doubt  of  the  defend- 
ant's guilt,  there  must  be  an  acquittal.^ 

1  83  Ga.  129.     And  see  Duncan  v.  State  (Ga.),  22  S.  E.  324. 

2  Rudy  V.  Com.,  128  Pa.  St.  500.  And  see  Turner  v.  Com.,  80  Pa.  St.  54  ; 
Briceland  v.  Com.,  74  Pa.  St.  463. 

3  State  V.  Ward,  61  Vt.  153. 

*  People  V.  Fong  Ah  Sing,  64  Cal.  253  ;  State  v.  Howell,  100  Mo.  624 ; 
oven-uling  State  v.  Jennings,  81  Mo.  185  ;  Pate  v.  State,  94  Ala.  14  ;  State  v. 
Waterman,  1  Nev.  543  ;  Wisdom  v.  People,  11  Col.  ITO  ;  Adams  v.  State, 
28  Fla.  511  ;  McLain  v.  State,  18  Neb.  154. 

^  State  V.  Woolard,  111  Mo.   248.    And  see  Gallaher  v.  State,  20   Tex. 


318  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

There  is  a  presumption — so  runs  the  reasoning  in  the  case — 
that  clings  to  a  person  charged  with  crime  through  every  suc- 
cessive step  of  his  trial,  that  he  is  innocent ;  and  this  presump- 
tion is  never  weakened,  relaxed,  or  destroyed  until  there  is  a 
judgment  of  conviction.  All  that  the  defendant  is  required  to 
do  is  to  show  such  a  state  of  facts  as  to  create  a  reasonable 
doubt  of  ffuilt.^  And  it  is  therefore  not  correct  to  instruct 
that  the  evidence  must  be  such  as  to  satisfy  the  jury  that  the 
crime  could  not  have  been  committed  by  the  defendant.^ 

The  Supreme  Court  of  Michigan  reversed  a  judgment  upon  the 
ground  that  in  an  instruction  to  the  jury  a  burden  was  cast  upon 
the  defendant  much  heavier  than  the  law  would  justify.  The 
trial  court  had  charged  that  proof  of  an  alihi  "  must  cover  the 
time  that  the  offence  is  shown  to  have  been  committed,  so  as 
to  preclude  the  possibility  of  the  prisoner's  presence  at  the 
place  of  the  burglary,"  and  that  "  the  value  of  the  defence 
consists  in  his  showing  that  he  was  absent  from  the  place  where 
the  deed  was  done,  and  at  the  very  time  that  the  e^ddence  of 
the  people  tends  to  fix  its  commission  upon  him.  If  it  be  possi 
ble  that  he  could  have  been  at  the  places,  the  defence  is  value- 
less."    No  such  strict  proof,  it  was  said,  is  required.^ 

Where  the  jury  were  told  that  they  mast  acquit  unless  they 
found  from  all  the  circumstances  given  in  evidence  the  pres- 
ence of  the  defendant  at  the  place  of  the  crime,  and  his  guilt 
beyond  a  reasonable  doubt,  a  special  instruction  concerning  the 
defence  of  alihi  was  held  unnecessary.* 

"Where  the  jury  were  instructed  that  "  if  they  should  find 
and  believe  from  the  evidence  that,  at  the  time  the  oifence 
charged  in  the  indictment  was  committed,  the  defendant  was 
at  a  place  other  than  the  place  where  such  offence  or  crime  was 
committed,  they  should  find  the  defendant  not  guilty."  This 
was  held,  on  appeal,  to  be  erroneous,  because,  while  the  jury 
might  have  had  no  hesitancy  in  refusing  to  find  as  an  affirma- 
tive fact  that  defendant  was  in  the  place  where  he  claimed  he 
was  when  the  crime  was  committed,  yet  they  might  have  en- 
tertained a  reasonable  doubt  on  the  subject.^ 

Crim.  App.  247 ;  People  v.  Stone,  7  N.  Y.  Cr.  E.  430  ;  Miller  v.  People, 
39  111.  457. 

1  State  V.  Child,  40  Kan.  488.  2  Murphy  v.  State,  31  Fla.  166. 

8  Stuart  V.  People,  42  Mich.  255.     See  also  Sullivan  v.  People,  31  Mich.  1. 

«  State  V.  Sanders,  106  Mo.  188.     And  see  State  v.  Shroyer,  104  Mo.  441. 

6  State  V.  Taylor  (Mo.),  22  S.  W.  806.     And  see  State  v.  McLain,  mpra. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    319 

Under  no  state  of  facts  could  a  charge  upon  alihi  be  correct 
■which  required  the  jury  to  believe  the  proof  of  alibi  before 
they  could  acquit. ^  But  if,  after  considering  all  the  facts  and 
circumstances,  the  jury  have  no  reasonable  doubt  of  the  pres- 
ence of  the  defendant  at  the  place  of  the  crime,  the  defence 
has  not  been  made  out.^  And  the  verdict  will  not  be  set  aside 
because  the  jury  have  given  credence  to  the  evidence  of  the 
prosecution  contradicting  the  evidence  in  support  of  the  alibi? 

It  was  formerly  held  in  one  or  two  States  that  where  the 
defence  of  insanity  was  set  up  the  jury  ought  to  be  satisfied  of 
the  insanity  beyond  a  reasonable  doubt.*  This  view  never 
obtained  much  support,  and  is,  at  the  present  time,  almost  uni- 
versally discountenanced.^ 

Says  Foster  in  his  Crown  Law :  "  All  the  circumstances  of 
accident,  necessity,  or  infirmity  are  satisfactorily  to  be  proved 
by  the  prisoner."  ^  And  Chief  Justice  Tindal,  speaking  for  all 
the  judges  with  the  exception  of  Mr.  Justice  Maule,  said,  in 
answer  to  a  question  propounded  by  the  House  of  Lords  in 
consequence  of  a  discussion  which  arose  out  of  the  famous 
M^Naughton  case,'^  that  "  the  jury  ought  to  be  told  in  all  cases 
that  every  man  is  presumed  to  be  sane,  and  to  possess  a  suffi- 
cient degree  of  reason  to  be  responsible  for  his  crimes  until  the 
contrary  be  proved  to  their  satisfaction."  And  it  is  a  widely 
adopted  rule  in  this  country  that  the  defendant  must  prove  to 
the  reasonable  satisfaction  of  the  jury  that  he  was  insane  at 
the  time  of  the  commission  of  the  act.^  A  reasonable  doubt 
of  the  defendant's  sanity  raised  by  all  the  e\adence  does  not 
authorize  an  acquittal.^ 

1  Bennett  v.  State,  30  Tex.  Cr.  App.  341. 

2  Aneals  v.  People,  134  111.  401  ;  Gravely  t;.  State,  38  Neb.  871. 
8  Doyle  V.  State,  5  Tex.  Crim.  App.  443. 

*  State  V.  Spencer,  1  Zab.  197. 

6  Meyers  v.  Com.,  83  Pa.  St.  131  ;  Dove  v.  State,  3  Heisk.  348  ;  People  v. 
McCann,  16  N.  Y.  85  ;  Patterson  v.  People,  46  Barb.  635.  And  opinion  of 
Earl,  C.  J.,  in  People  v.  Schryver,  43  N.  Y.  1. 

6  App.  355.  7  See  8  Scott's  N.  R.  595  ;  1  C.  &  K.  (13  E.  C.  L.)  130. 

8  State  V.  Schasfer,  116  Mo.  96  ;  State  v.  Klinger,  43  Mo.  137  ;  State 
V.  King,  1  Mo.  App.  438  ;  Lceffner  v.  State,  10  Ohio  St.  59  ;  Fisher  v. 
People,  33  111.  383. 

9  Ford  V.  State,  71  Ala.  385  ;  Boswell's  Case,  63  Ala.  307.  And  see  further 
on  this  subject,  Walter  v.  People,  33  N.  Y.  147  ;  Graham  v.  Com.,  16  B. 
Mon.  587  ;  Chase  v.  People,  40  III.  353  ;  State  v.  Lawrence,  57  Maine,  574  ; 
Kriel  v.  Com.,  5  Bush,  363  ;  Bonsall  v.  Com.,  30  Grat.  860 ;  People  v.  Coflf- 
man,  34  Cal.  330 ;  State  v.  Bartlett,  43  N.  H.  334 ;  McKenzie  v.  State,  43 


320  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

The  more  modern  doctrine,  however,  is  that  although  the 
law  presumes  sanity,  it  at  the  same  time  presumes  innocence, 
that  these  presumptions  are  each  disputable  and  must  go  to 
the  jury  to  be  considered  by  them  in  connection  with  the  other 
evidence,  and  that  if  the  jury,  upon  the  facts  of  the  whole  case, 
entertain  a  reasonable  doubt  that  the  crime  charged  was  com- 
mitted by  the  prisoner  while  in  a  sane  state  of  mind,  he  is 
entitled  to  an  acquittal.^  If  upon  the  whole  evidence  the  jury 
have  a  reasonable  doubt  of  defendant's  sanity,  they  have  a 
reasonable  doubt  of  his  guilt,  and  are  bound  to  acquit.^ 

This  view  is  adopted  in  Indiana,  where  the  following  com- 
mendable instruction  was  approved  in  a  valuable  case  :  ^  "  The 
law  presumes  that  a  man  is  of  sound  mind  until  there  is  some 
evidence  to  the  contrary.  In  prosecutions  for  offences  against 
the  criminal  code,  the  accused  is  entitled  to  an  acquittal  if  the 
evidence  engenders  a  reasonable  doubt  as  to  his  mental  capac- 
ity at  the  time  the  alleged  offence  is  charged  to  have  been 
committed.  Evidence  rebutting,  or  tending  to  rebut,  the  pre- 
sumption of  sanity,  need  not,  to  entitle  the  defendant  to  an 
acquittal,  preponderate  in  favor  of  the  accused.  It  will  be 
sufficient  if  it  raise  in  the  minds  of  the  jury  a  reasonable 
doubt."  And  in  a  recent  case  in  Illinois  the  law  was  thus  laid 
down :  "  The  presumption  of  sanity  inheres  at  every  stage  of 
the  trial  until  the  insanity  is  made  to  appear  by  the  evidence. 
The  law  in  this  State  undoubtedly  is  that  this  legal  presump- 
tion may  be  overcome  by  evidence  tending  to  prove  insanity 
of  the  accused,  which  is  sufficient  to  raise  a  reasonable  doubt 
of  his  sanity  at  the  time  of  the  commission  of  the  act  for 
which  he  is  sought  to  be  held  accountable.  "When  that  is  done 
the  presumption  of  sanity  ceases,  and  the  burden  shifts  to  the 
prosecution,  and  it  is  then  required  to  prove  his  sanity,  as  an 
element  necessary  to  constitute  crime,  beyond  a  reasonable 
doubt.'"* 

Ga.  334  ;  State  v.  Robinson,  20  W.  Va.  737 ;  State  v.  Manchester,  46  la. 
88  ;  State  v.  Bruce,  48  la.  533  ;  Lynch  v.  Com.,  77  Pa.  St.  305  ;  Ortwein  v. 
Com.,  76  Pa.  St.  414. 

1  See  the  remarks  of  Judge  Somerville  in  Ford  v.  State,  71  Ala.  385, 
where  it  was  intimated  that  if  the  question  were  a  new  one  in  Alabama  it 
would  be  decided  in  accordance  with  the  later  doctrine. 

2  State  V.  Crawford,  11  Kan.  33.  See  further  State  v.  Keddick,  7  Kan. 
143  ;  Pomeroy's  Case,  117  Mass.  143.  ^  Grielig  v.  People,  66  Ind.  94. 

*  Dacey  v.  People,  116  111.  556.     And  see  Jamison  v.  People,  145  lU.  357  ; 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    321 

The  same  view  is  held  by  the  Supreme  Court  of  Kansas,  as 
is  manifested  by  the  following  instruction  :  "  The  jury  should 
be  satisfied  beyond  a  reasonable  doubt,  before  convicting  a 
man  of  a  crime,  that  he  was  of  sound  mind  at  the  time  of  the 
commission  of  the  oflfence.  If  not  so  satisfied  beyond  a  reason- 
able doubt  he  should  be  acquitted.  The  jury  are  further 
instructed  that  if,  upon  the  whole  evidence,  they  find  that  the 
defendant  at  the  time  of  committing  the  act  was  not  of  sound 
mind,  and  was  unconscious  that  he  was  committing  a  crime, 
they  should  acquit  him.  The  fact  of  the  soundness  of  mind 
at  the  time  when  the  act  was  committed  is  as  much  an  essen- 
tial ingredient  of  the  crime  of  murder,  as  the  fact  of  killing  or 
of  malice,  or  of  any  other  fact  or  ingredient  of  murder,  and 
should  be  made  out  in  the  same  way,  by  the  same  party,  and 
by  evidence  of  the  same  kind  and  degree,  and  as  conclusive  in 
its  character  as  is  required  in  making  out  any  other  fact, 
ingredient,  or  element  of  murder.  *  *  *  Xf  the  jury  can- 
not say  beyond  a  reasonable  doubt  that  the  defendant  was 
sane  at  the  time  of  the  commission  of  the  alleged  act,  or  can- 
not say  whether,  at  the  time,  he  was  sane  or  insane,  they  are 
bound  to  acquit  him."  ^ 


Section  II. 

If  the  Evidence  Fails  to  Attain  the  Required  Standard  an 
Acquittal  must  Follow. 

If  there  he  anij  reasonable  douht  of  the  guilt  of  the  accused,  he 
is  entitled,  as  of  right,  to  he  acquitted.  In  other  words,  there 
must  be  no  uncertainty  as  to  the  reality  of  the  connection  of 
the  circumstances  of  evidence  with  the  factum  prohandum,  or 
as  to  the  sufficiency  of  the  proof  of  the  corpus  delicti,  or,  sup- 
posing those  points  to  be  satisfactorily  established,  as  to  the 
personal  complicity  of  the  accused. 

This  might,  perhaps,  be  classed  as  a  fifth  rule,  but  in  strict- 
ness it  is  hardly  so  much  a  distinct  rule  of  evidence  as  a  con- 
sequence naturally  flowing  from,  and  virtually  comprehended 

Faulkner  v.  Terr.  (N.    M.).    30  Pac.   905  ;  Cunningham  v.  State,  56  Miss. 
269. 

1  State  V  Mahn,  25  Kan.  186. 

See  oci  this  subject  the  valuable  treatise  of  Judge  Seymour  D.  Thompson 
on  the  Law  of  Trials,  §  2524  et  sea. 
21  ^ 


322  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

in,  the  preceding  rules.  Indeed,  it  is  more  properly  a  test  of 
the  right  application  of  those  rules  to  the  facts  of  the  particu- 
lar case.  The  necessity  and  value  of  such  test  is  manifest  from 
the  consideration  of  the  numerous  fallacies  incidental  to  the 
formation  of  the  judgment  on  indirect  evidence  and  con- 
tingent probabilities,  and  from  the  impossibility  in  all  cases  of 
drawing  the  line  between  moral  certainty  and  doubt. 

In  questions  of  civil  right  the  decision  must  be  given  accord- 
ing to  the  greatest  amount  of  probability  in  favor  of  one  or 
the  other  of  the  litigant  parties  ;i  but  where  life  or  liberty  are 
in  the  balance,  it  is  neither  just  nor  necessary  that  the  accused 
should  be  convicted  but  upon  conclusive  evidence.  While  it  is 
certain  that  circumstantial  evidence  is  frequently  most  con- 
vincing and  satisfactory,  it  must  never  be  forgotten,  as  was 
remarked  by  that  wise  and  upright  magistrate.  Sir  Matthew 
Hale,  that  "  persons  really  innocent  may  be  entangled  under 
such  presumptions,  that  many  times  carry  great  probabilities 
of  guilt ; "  ^  wherefore,  as  he  justly  concludes,  "  this  kind  of 
evidence  must  be  very  warily  pressed." 

Many  adverse  appearances  may  be  outweighed  by  a  single 
favorable  one,  and  all  the  probabilities  of  the  case  may  not  be 
before  the  court.  The  Lord  Justice  Clerk  Cockburn,  in  his 
charge  in  the  case  of  Madeleine  Smith,  before  mentioned,  said  : 
"  I  wish  you  to  keep  in  mind  that  although  you  may  not  be 
satisfied  with  any  of  the  theories  that  have  been  propounded 
on  behalf  of  the  prisoner,  still,  nevertheless,  the  case  for  the 
prosecution  may  be  radically  defective  in  evidence."  ^     But  in 

1  In  civil  cases  it  is  sufficient  if  the  evidence  on  the  whole  agrees  with 
and  supports  the  hypothesis  which  it  is  adduced  to  prove.  Earl,  C.  J.,  in 
People  V.  Schryver,  43  N.  Y.  1  ;  James  v.  State,  45  Miss.  572.  In  all  civil 
cases  the  preponderance  of  testimony  is  considered  sufficient  to  produce 
mental  conviction.  Ga.  Code,  §  3749.  And  the  court  should  not  lay  stress 
upon  doubt  which  may  exist  of  the  proof  of  particular  facts.  Clark  v. 
Cassidy,  63  Ga.  407.  See  also  Gannon  v.  Ruffln,  151  Mass.  204 ;  Com.  v. 
CuUen,  36  Leg,  Int.  252  ;  Jones  v.  Greaves,  26  Ohio  St.  2 ;  Rippey  r. 
Miller,  1  Jones'  L.  479 ;  Neal  v.  Tesperman,  1  Id.  446 ;  MinB,  Ins.  Co.  v. 
Johnson,  11  Bush,  587  ;  Barfield  v.  Britt,  2  Jones'  L.  41  ;  People  v.  Even- 
ing News,  51  Mich.  11  ;  Newis  v.  Look,  Plowd.  412  ;  remarks  of  Mr.  Justice 
WiLLES,  in  Cooper  v.  Slade,  6  E.  «fe  B.  447  ;  6  H.  L.  746. 

In  a  civil  case  an  instruction  has  been  held  erroneous  which  required  a 
pai'ty  to  establish  his  claim  by  a  "  clear  preponderance  of  evidence. "  Bitter 
V.  Saathotf,  98111.  266. 

2.2  P.  C.  39.  See  also  Rex  v.  Thornton,  supra  ;  Prather  v.  Com.,  10  Crim. 
L.  Mag.  890.  »  See  infra,  401  et  seq. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   393 

Kentucky,  where  the  court  is  confined  to  instructing  the  jury 
on  the  "  law  applicable  to  the  case,'-  it  is  held  that  circumstan 
tial  evidence  should  be  left  like  direct  evidence  to  be  considered 
by  the  jur}"",  and  to  have  such  weight  as  they  deem  it  entitled 
to  without  caution  or  suggestion  on  the  part  of  the  court  to 
scrutinize  it  closely.^ 

It  is  safer,  therefore,  as  was  wisely  said  by  Sir  Matthew  Hale, 
to  err  in  acquitting  than  in  convicting,  and  better  that  many 
guilty  persons  should  escape,  than  that  one  innocent  man 
should  suffer.2  Paley  controverts  the  maxim,  and  urges  that 
"  he  who  falls  by  a  mistaken  sentence  may  be  considered  as 
falling  for  his  country,  while  he  suffers  under  the  operation  of 
those  rules  by  the  general  effect  and  tendency  of  which  the 
welfare  of  the  community  is  maintained  and  upheld."  ^  There 
is  no  judicial  enormity  which  may  not  be  palliated  or  justified 
under  color  of  this  execrable  doctrine,  which  is  calculated  to 
confound  all  moral  and  legal  distinctions;  its  sophistry,  ab- 
surdity, and  injustice  have  been  unanswerably  exposed  by  one 
of  the  ablest  of  lawyers  and  most  upright  of  men.*  Justice 
never  requires  the  sacrifice  of  a  victim  ;  an  erroneous  sentence 
is  calculated  to  produce  incalculable  and  irreparable  mischief 
to  individuals,  to  destroy  all  confidence  in  the  justice  and 
integrity  of  the  tribunals,  and  to  introduce  an  alarming  train 
of  social  evils  as  the  inevitable  result. 

In  Belmieifs  case  Mr.  Baron  Gurney^  one  of  the  ablest  and 
most  experienced  judges  of  the  English  criminal  courts,  in  his 
summing  up  used  this  language :  "  If  you  think  the  case  is 
conclusive,  it  is  your  duty  to  pronounce  the  prisoner  guilty. 
But  if  you  think  it  has  left  you  in  doubt  so  that  you  cannot 
safely  convict,  you  will  remember  that  it  is  better  that  many 
guilty  men  should  escape  than  that  one  innocent  man  should 
perish."  And  again  :  "  If  3^ou  convict  while  there  is  any 
rational  doubt,  you  act  in  defiance  of  a  well-known  rule  of 
law,  and  may  commit  that  foulest  of  all  enormities,  a  murder 
under  color  of  law ;  whereas,  if  you  err  in  an  acquittal,  the 
worst  that  can  be  said  is,  that  human  justice  has  miscarried — 
at  least  it  has  not  committed  a  crime.      In  the  one  case  a 

1  Brady  v.  Com.,  11  Bush,  282. 

2  2  P.  C.  c.  39. 

8  Mor.  and  Pol.  Phil.  b.  vi.  ch.  9. 

4  Romily's  Obs.  on  the  C.  L.  of  England,  72  ;  Best  on  Pres.  293. 


324  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

murder  merely  passes  for  the  present  unpunished :  in  the 
other  the  most  horrible  of  murders  is  committed." 

Every  consideration  of  truth,  justice,  and  prudence  requires, 
therefore,  that  where  the  guilt  of  the  accused  is  not  incontro- 
vertibly  established,  however  suspicious  his  conduct  may  have 
been,  he  shall  be  acquitted  of  legal  accountability.  The  ac- 
cused is  entitled  to  an  acquittal  unless  the  fact  of  guilt  is 
proven  to  the  exclusion  of  every  reasonable  hypothesis  of 
innocence.^ 

No  rule  of  procedure  is  more  firmly  established,  as  one  of 
the  great  safeguards  of  truth  and  innocence,  than  the  rule  in 
question;  and  it  is  the  invariable  practice  of  judges  to  advise 
juries  to  acquit  whenever  they  entertain  any  fair  and  reason- 
able doubt.2  But  a  charge  that,  no  matter  how  strong  the 
circumstances  might  be,  the  jury  should  acquit  if,  under  all  the 
evidence,  they  believe  that  the  accused  might  not  have  com- 
mitted the  crime,  imposes  too  strong  a  measure  of  proof  on  the 
prosecution.^  And  to  instruct  that  there  must  be  an  acquittal 
if  "  any  uncertainty  whatever  exists,"  calls  for  too  high  a 
measure  of  proof.* 

A  probability  of  a  defendant's  innocence  is  a  just  foundation 
for  a  reasonable  doubt  of  his  guilt,  and  therefore  for  his 
acquittal.^ 

And  after  having  thus  charged  the  jury  it  is  proper  for  the 
court  to  add  that  "  probability  is  the  state  of  being  probable ; 
and  'probable'  has  been  defined  to  be  'more  evidence  for 
than  against ;  supported  by  evidence  which  inclines  the  mind 
to  belief,  but  leaves  some  room  for  doubt.'  "  ^ 

Where  the  defendant  requested  the  following  instruction : 
"  It  is  as  much  their  duty  as  jurors  to  acquit  the  defendant,  if 
from  the  evidence  they  have  a  reasonable  doubt  of  his  guilt,  as 
it  would  be  to  convict  him  if  they  believe  to  a  moral  certainty 

1  Prather  v.  Com.,  10  Crim.  L.  Mag.  890. 

■^  State  V.  Bush,  132  Ind.  42  ;  People  v.  O'Bryan,  1  Wheel.  Cr.  Cas.  21  ; 
People  V.  Blake,  Id.  272  ;  Joe  v.  State,  38  Ala.  422  ;  Shultz  v.  State,  13  Tex. 
401  ;  Bradley  v.  State,  31  Ind.  492  ;  Connor  v.  State,  34  Tex.  659  ;  James 
V.  State,  45  Miss.  572  ;  Lowder  v.  Com.,  8  Bush,  432  ;  McGregor  v.  State,  16 
Ind.  9  ;  Reins  v.  People,  80  111.  256  ;  State  v.  Crawford,  34  Mo.  200  ; 
McGuire  v.  State,  37  Miss.  269  ;  Crilly  v.  State,  20  Wis.  231 ;  Com.  v.  Cun- 
ningham, 104  Mass.  545. 

8  Pate  V.  State,  94  Ala.  14.  *  Yarbrough  v.  State  (Ala.),  16  So.  758. 

6  Dain  v.  State,  74  Ala.  38.  e  Williams  v.  State,  98  Ala.  33. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   325 

that  he  is  guilty  ;  and  if  from  the  evidence  they  are  not  satis- 
fied beyond  a  reasonable  doubt  that  he  is  guilty,  they  would  be 
false  to  their  obligations  as  jurors  if  they  were  to  convict  him, 
as  they  would  be  should  they  acquit  him  if  the  evidence  con- 
vinces them  of  his  guilt  to  a  moral  certainty" — this  was  prop- 
erly refused  as  being  argumentative,  and  having  a  tendency 
rather  to  confuse  than  to  enlighten."  ^ 

The  inherent  imperfection  of  language  renders  it  impossible 
to  define  in  exact,  express  terms  the  nature  of  a  reasonable 
doubt.  It  arises  from  a  mental  operation,  and  exists  in  the 
mind  when  the  judgment  is  not  fully  satisfied  as  to  the  truth  of 
a  criminal  charge,  or  the  occurrence  of  a  particular  event,  or 
the  existence  of  a  thing.  It  is  a  matter  that  must  be  deter- 
mined by  a  jury,  acting  under  the  obligations  of  their  oaths  and 
their  sense  of  right  and  diity.''^  And  some  courts  hold  it  to  be 
the  better  practice  not  to  attempt  to  define  a  reasonable  doubt,^ 
declaring  that  it  is  not  susceptible  of  a  clearer  definition  than 
is  expressed  in  the  phrase  itself,*  and  that  attempts  to  define  it 
are  unsafe  and  indiscreet,  and,  more  often  than  otherwise,  con- 
fusing to  the  jury.  And  certainly  where  the  term  is  defined  by 
statute,  it  would  be  well  for  a  judge  at  the  trial  to  follow  the 
exact  language  of  the  statute  without  attempting  further  ex- 
planation. 

It  is  not  error  to  omit  to  define  the  phrase  when  no  instruc- 
tion containing  the  definition  is  asked  ;^  and  an  instruction  to 
the  jury  that  they  should  be  satisfied  of  the  defendant's  guilt 
beyond  a  reasonable  doubt  is  often  sufficient  without  further 
explanation.  But  in  many  instances,  and  especially  where  the 
case  is  at  all  complicated,  some  explanation  or  illustration  of 
the  rule  may  aid  in  its  full  and  just  comprehension.^ 

The  law  does  not  require  that  the  testimony  should  be  such 
as  to  exclude  every  possible  doubt  or  every  imaginary  theory 
except  that  of  the  defendant's  guilt.^     A  probability  of  inno- 

1  Cooper  V.  State,  88  Ala.  107. 

2  Dick,  J.,  in  TJ.  S.  v.  Hopkins,  26  Fed.  Rep.  443. 

8  Terr.  v.  Chavely,  30Pac.  903  ;  Mickey  u.  Com.,  9  Bush,  593  ;  Williams  v. 
Com.,  SOKy.  313. 

*  Siberry  v.  State,  133  Ind.  677  ;  Wall  v.  State,  51  Ind.  453. 

^  People  V.  Christensen,  85  Cal.  568 ;  State  v.  Robinson,  117  Mo. 
649. 

6  Mr.  Justice  Field,  in  Hopt  v.  Utah,  120  U.  S.  430. 

'  State  V.  Ford,  21  Wis.  610. 


326   THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

cence  is  not  a  reasonable  doubt.^  The  ambiguous  sentence, 
"mere  probabilities  of  innocence  or  doubts,  however  reasonable, 
which  beset  some  minds  on  all  occasions,  should  not  prevent  a 
verdict  of  guilt}^,"  should  not  be  employed  in  charging  the  jury 
upon  this  subject.  But  though  disapproved,  it  will  not,  when 
used,  cause  a  reversal  if  the  charge  is,  in  other  respects,  strong 
and  clear .2 

A  reasonable  doubt  is  not  a  doubt  created  by  the  ingenuity 
of  counsel,^  or  of  the  jury.*  And  it  is  not  a  whimsical,^  arbi- 
trary',^ or  speculative '  doubt ;  neither  is  it  a  trivial  supposition.^ 
It  is  not  a  conjecture  or  a  guess.^  Nor  is  it  such  a  doubt  as 
is  born  of  a  merciful  inclination  to  permit  the  defendant  to 
escape  the  penalty  of  the  law,  nor  one  prompted  by  sympathy 
for  him  or  those  dependent  upon  him.^^  The  jury  must  not 
raise  a  fanciful  or  ingenious  doubt  to  escape  the  consequences 
of  an  unpleasant  verdict.^^ 

In  a  Missouri  case^  it  was  held  that  a  charge  directing  the 
jur}'^  that  they  might  "  act  upon  that  degree  of  assurance  such 
as  prudent  men  properly  act  upon  in  the  more  important  con- 
cerns of  life,-'  was  correct  when  considered  with  other  portions 
of  the  instruction.  Whether  a  doubt  is  reasonable  or  not  is 
never  an  absolute  but  always  a  relative  question. ^^  And  it  has 
been  said  that  an  illustration  by  reference  to  the  conviction 
upon  which  the  jurors  would  act  in  the  weighty  and  important 
concerns  of  life  would  be  likely  to  aid  them  to  a  right  conclu- 
sion.^* 

1  Reeves  v.  State,  29  Fla.  527.  »  People  v.  Lee  Save  Bo.,  72  Cal,  623. 

8  U.  S.  V.  King,  2  Wash.  L.  Rep.  501. 
*  U.  S.  V.  Harper,  33  Fed.  Rep.  471. 

5  McGuire  v.  State,  43  Tex.  210  ;  Welsh  v.  State,  96  Ala.  92. 

6  McGuire  v.  People,  44  Mich.  286. 

7  Brown  v.  State,  1  Tex.  App.  154  ;  Boulden  v.  State,  102  Ala.  78. 

^  Giles  V.  State,  6  Ga.  276.  And  see  the  language  of  Mr.  Baron  Parke,  in 
Reg.  V.  Tawell,  ut  supra. 

9  People  V.  Davis,  19  N.  Y.  S.  781  ;  Welsh  v.  State,  11  So.  450. 

w  Watt.  V.  People,  1  L.  R.  A.  403  ;  126  111.  9  ;  United  States  v.  Means,  42 
Fed.  Rep.  599  ;  Perry  v.  State,  87  Ala.  30 ;  Dick  v.  State,  Id.  61  ;  Vann  v. 
State,  83  Ga.  44  ;  State  v.  Clayton,  100  Mo.  516;  U.  S.  v.  Harper,  ut  supra. 

"  Com.  V.  Drum,  58  Pa.  St.  9.         12  state  v.  Crawford,  34  Mo.  201. 

13  Leonard  v.  Terr.,  2  Wash.  L.  381. 

"  Mr.  Justice  Field,  in  Hopt  v.  Utah,  120  U,  S.  430.  And  see  State  v. 
Nash,  7  Iowa,  347  ;  State  v.  Ostrander,  18  Iowa,  458  ;  Arnold  r.  State,  23 
Ind.  170 ;  United  States  v.  Heath,  19  Wash.  L.  Rep.  818  ;  State  v.  Kearley, 
26  Kan.  77. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   327 

*  If,"  said  Lord  Chief  Baron  Pollock  to  a  jury,  "  the  conclu- 
sion to  which  you  are  conducted  be  that  there  is  that  degree 
of  certainty  in  the  case  that  you  would  act  upon  it  in  your 
own  grave  and  important  concerns,  that  is  the  degree  of  cer- 
tainty which  the  law  requires,  and  which  will  justify  you  in 
returning  a  verdict  of  guilty."  ^  "  To  require  more,"  said  the 
same  high  authority  on  another  occasion,  "  would  be  really  to 
prevent  the  repression  of  crime  which  it  is  the  object  of  crim- 
inal courts  to  effect."  ^ 

For  a  trial  juror,  said  the  court  in  a  recent  case,  it  is  such  a 
doubt  as  a  man  of  ordinary  prudence,  sensibility,  and  decision, 
in  determining  an  issue  of  like  concern  to  himself  as  that  be- 
fore the  jury  to  the  defendant,  would  allow  to  have  any  in- 
fluence whatever  upon  him  or  make  him  pause  or  hesitate  in 
arriving  at  his  determination.^ 

The  Court  of  Appeals  of  ]S"ew  York  lately  approved  an  in- 
struction which  substantially  charged  that  a  reasonable  doubt 
could  not  be  said  to  exist  where  the  jury  were  so  firmly  con- 
vinced of  the  facts  necessary  to  establish  the  prisoner's  guilt, 
that,  if  it  were  a  grave  and  serious  matter,  affecting  their  own 
affairs,  they  would  not  hesitate  to  act  upon  such  conviction.^ 

A  doubt  that  would  cause  one  to  pause  and  hesitate,  if  fairly 
derived  from  the  evidence,  is  a  reasonable  doubt  within  the  mean- 
ing of  the  criminal  law.  "  A  doubt  that  Avould  control  our  ac- 
tions in  the  important  transactions  of  life  would  be  one  that 
was  so  stroHg  as  not  to  be  overcome  by  the  balancing  process. 
Such  doubt  would  be  practically  an  unconquerable  one.  It 
would  lead  us  not  simply  to  refrain  from  acting,  but  to  act."  ^ 

But  it  is  maintained  by  other  courts  that  the  degree  of  cer- 
tainty upon  which  men  act  in  "  their  own  grave  and  important 
concerns,"  will  not  justify  a  verdict  of  guilty  in  a  criminal  case. 
The  jury,  it  is  said,  should  be  fully  convinced  of  the  correct- 
ness of  their  conclusion  that  the  prisoner  is  guilty.^ 

1  Reg.  V.  Manning  and  Wife,  C.  C.  C. ,  Oct.  1849.  And  see  the  language 
of  Mr.  Justice  Parke,  in  Doe  d.  Pattershall  v.  Turford,  3  B.  &  Ad.  897  ;  and 
of  Lord  Meadowbank,  in  Reg.  v.  Humphreys,  Swinton's  Rep.  353.  And 
see  McGregor  v.  State,  16  Ind.  9. 

a  MuUer's  Case,  C.  C.  C,  Jan.  1865.       «  Leonard  v.  Terr.,  2  Wash.  T.  381. 

*  People  V.  Wayman,  128  N.  Y.  585 ;  People  v.  Hughes,  32  N.  E.  1105. 
And  see  also  State  v.  Elsham,  70  la.  531 ;  Butter  v.  State  (Ga.),  19  S.  E.  51. 

6  Com.  V.  Miller,  139  Pa.  77. 

•Jane  v.  Com.,  2  Met.  (Ky.)  30,   35;  Palmerston  v.  Terr.   3  Wyo.  33; 


328  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

The  Supreme  Court  of  Minnesota  reversed  a  judgment  be- 
cause of  error  in  an  instruction  which  charged  "  that  in  order 
to  convict,  the  jury  must  be  satisfied  beyond  a  reasonable 
doubt  that  this  does  not  require  unreasonable  or  impracticable 
things  at  the  hands  of  the  prosecution,  nor  absolute  certainty  ; 
but  the  jury  should  be  satisfied  as  reasonable  men,  so  that  they 
would  be  willing  to  act  upon  it  as  in  matters  of  great  impor- 
tance to  themselves."  In  the  course  of  the  argument  on  this 
point  the  court  said :  "  The  limitations  of  the  charge  are  sub- 
stantially that  unreasonable  and  impracticable  things  are  not 
required  of  the  prosecution,  nor  need  the  proof  amount  to  ab- 
solute certainty  ;  on  the  other  hand,  it  must  not  be  a  mere  pre- 
ponderance of  evidence.  But  within  these  limits  any  degree 
of  proof  upon  which,  as  reasonable  men,  they  would  act  in 
matters  of  great  importance  to  themselves  would  be  sufficient. 
Men  may  and  do  act  in  matters  of  great  importance  to  them- 
selves upon  strong  probabilities  and  without  that  degree  of 
proof  which  convinces  the  mind  and  conscience.  But  it  would 
be  unreasonable  of  men,  in  matters  of  the  highest  concern  and 
importance  to  them,  to  act  without  a  conviction  of  the  truth 
of  the  evidence  and  correctness  of  the  result  upon  Avhich  they 
base  their  action.  Under  this  charge  the  preponderance  of 
proof  might  be  so  great  as  to  produce  a  strong  probability  of 
the  defendant's  guilt,  such  a  probability  as  men  Avould  act  upon 
in  matters  of  great  importance,  and  yet  not  convince  the  minds 
and  consciences  of  the  jury  beyond  a  reasonable  doubt  of  the 
guilt  of  the  defendant."  ^ 

People  V.  Marble,  30  Mich.  309;  People  v.  Bemmerly,  87  Cal.  117; 
State  V.  Oscar,  53  N.  C.  305 ;  People  v.  Wohlfrom  (Cal.),  Feb.  17,  1891  ; 
Cohen  v.  State,  50  Ala.  108  ;  Terr.  v.  Bannigan,  1  Dak.  451  ;  State  v.  Rover, 
11  Nev.  343  ;  overruling  State  v.  Millain,  3  Nev.  481.  Where  the  court 
instructed  that  ' '  if  the  same  quantity  and  quality  of  evidence  offered  here 
was  offered  to  a  reasonably  careful  business  man  as  to  his  important  busi- 
ness transactions,  and  it  would  induce  him  to  act  on  his  important  business 
matters,  there  cannot  be  said  to  be  a  reasonable  doubt,"  the  judgment  was 
reversed.  State  v.  Shettleworth,  18  Minn.  208.  See  also  People  r.  Ashe,  44 
Cal.  388 ;  Bray  v.  State,  41  Tex.  560.  In  a  Wisconsin  case  the  jury  were 
instructed  that  they  should  require  equally  as  strong  and  conclusive  evi- 
dence of  guilt  as  the  jury  would  require  to  induce  them  to  enter  upon  the 
greatest  and  most  important  acts  of  their  lives,  always  remembering  that 
their  verdict  must  be  the  truth.  And  though  the  judgment  was  not  re- 
versed the  charge  was  declared  not  wholly  satisfactory.  Ryan  v.  State, 
63  N.  W.  836;  83  Wis.  486. 

^  State  V.  Dineen,  10  Minn.  416.     Similar  to  this  was  the  language  of  the 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   329 

In  an  early  case  in  Pennsylvania  Chief  Justice  Gibson  said 
that  a  juror  was  "  not  at  liberty  to  disbelieve  as  a  juror  while 
he  believed  as  a  man."  ^  And  recently  Mr.  Justice  Paxson  said 
that  this  language  was  entirely  proper  when  considered  in  con- 
nection with  the  facts  of  the  particular  case.^ 

In  a  subsequent  case  it  was  held  that  similar  language, 
though  liable  to  be  misunderstood  by  the  jury,  was  not  erro- 
neous as  a  matter  of  law.^  But  Mr.  Justice  Parson  thought 
that  even  this  required  some  qualification.  "  If  it  does  mis- 
lead the  jury,  or  is  so  used  that  it  is  likely  to  mislead  the 
jury,''  it  would,  said  that  learned  judge,  be  regarded  as  error. 
"  There  are  many  cases  in  which  jurors,  as  men,  may  believe 
a  person  on  trial  for  a  crime  to  be  guilty,  where  the  evidence 
in  the  case  would  not  warrant  a  conviction." 

But  the  following  language  in  the  charge,  used  in  connection 
with  the  evidence  of  the  particular  case,  was  held  proper  : 
"  This  reasonable  doubt  is  not  one  the  jury  will  reach  out  for 
to  relieve  them  from  finding  a  verdict  of  guilty,  but  such  a 
doubt  as  is  left  from  the  failure  of  the  e^^dence  to  convince 
your  minds  of  the  guilt  of  the  defendant.  You  should  be  con- 
vinced as  jurors  where  you  would  be  convinced  as  citizens,  and 
you  should  doubt  as  jurors  only  where  you  would  doubt  as 
men."  * 

In  Illinois  it  has  been  ruled  that  a  juror  may  be  instructed 
that  his  oath  imposes  no  obligation  to  doubt  where  no  doubt 
would  exist  if  no  oath  had  been  administered.^    But  in  Indiana 

court  in  Bradley  v.  State,  31  Ind.  491.  "  A  prudent  man  compelled  to  do 
one  of  two  things  affecting  matters  of  the  utmost  moment  to  himself  might, 
and  doubtless  would,  do  that  thing  which  a  mere  preponderance  of  evi- 
dence satisfied  him  was  for  the  best,  and  yet  such  a  condition  would  fall 
far  short  of  that  required  to  satisfy  the  mind  of  a  juror  in  a  criminal  case. 
It  must  induce  such  faith  in  the  truth  of  the  facts  which  the  evidence 
tends  to  establish  that  a  prudent  man  might  without  distrust  voluntarily 
act  upon  their  assumed  existence  in  matters  of  the  highest  import  to  him- 
self." And  the  conclusion  of  the  court  in  this  case  was  tliat  there  should 
be  added  to  Mr.  Starkie's  definition  the  qualification  that  there  should  be 
such  a  conviction  of  the  truth  of  the  proposition  that  a  prudent  man 
would  be  safe  to  act  upon  the  conviction  under  circumstances  where  there 
was  no  compulsion  resting  upon  him  to  act  at  all.  See  also  Jarrell  v.  State, 
58  Ind.  293  ;  State  v.  Potts,  20  Nev.  398. 

1  Com.  V.  Harman,  4  Pa.  273. 

2  In  McMeen  v.  Com.,  5  Cent.  Rep.  887  ;  114  Pa.  St.  300. 

3  Fife  V.  Com.,  29  Pa.  St.  429.  *  McMeen  v.  Com.,  supra. 
5  Watt  r.  People,  126  111.  9  ;  1  L.  R.  A.  403. 


330  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

such   an  instruction  has  been  declared  improper,  since  it,  in 
effect,  relieves  the  jury  from  the  obligation  of  their  oaths.^ 

By  belief  beyond  a  reasonable  doubt  is  not  meant  absolute 
certainty  beyond  all  doubt,  nor  a  mere  possibility  of  innocence.^ 
The  Missouri  Court  of  Appeals  has  held  it  improper  to  use 
the  phrase  "  real,  substantial  doubt."  ^  But  it  may  be  said,  on 
the  sanction  of  authority,  that  the  doubt  that  will  justify 
acquittal,  is  not  a  probable  doubt  of  defendant's  guilt,^  not  an 
artificial  and  forced  one,^  not  a  "  reasonable  possibility "  of 
innocence,®  not  mere  possibility  or  speculation ;  ^  but  a  real, 
substantial,  well-founded  doubt,^  and  such  a  one  as  would  be 
entertained  by  a  reasonable  and  conscientious  man.^  The 
Supreme  Court  of  Louisiana  gave  its  unqualified  approval  to  a 
charge  which  declared  that  this  doubt  was  "  not  a  mere  possi- 
ble doubt ;  it  should  be  an  actual  or  substantial  doubt,  and  such 
a  doubt  as  a  reasonable  man  would  seriously  entertain."  ^^  The 
term  refers  to  the  strength  of  the  belief,  and  a  charge  that 
the  jury  must  convict  if  they  "  conscientiously  believe  the 
defendant  guilty  on  the  evidence,"  is  erroneous,  since  this 
touches  the  sincerity  of  the  belief.^^     And  so  it  has  been  said 

1  Siberry  v.  State,  133  Ind.  627.  To  the  same  effect,  see  People  v.  John- 
son, 140  N.  Y.  350. 

2  State  V.  Turner,  110  Mo.  196  ;  Langford  v.  State,  33  Neb.  783  ;  State  v. 
Jefferson,  43  La.  Ann.  995  ;  State  v.  Talmage,  107  Mo.  543  ;  U.  S.  v. 
Hughes,  34  Fed.  Rep.  732  ;  People  v.  Cox,  70  Mich.  247. 

3  State  V.  Fitzgerald,  20  Mo.  App.  408.  A  charge  that  reasonable  doubt 
means  a  reasonable,  substantial,  real  doubt,  touching  the  defendant's  guilt, 
and  not  a  mere  guess,  conjecture,  or  mere  possibility  that  defendant  may 
be  innocent,  is  incorrect.  State  v.  Smith,  4  West.  Rep.  788  ;  21  Mo. 
App.  595.  *  Prince  v.  State  (Ala.),  14  So.  409. 

5  State  V.  Bodekee,  34  la.  520.  «  gimg  ^^  state  (Ala.),  14  So.  560. 

•?  Whart.  Crim.  Law,  §  707  ;  State  v.  Evans,  55  Mo.  460  ;  Boulden  v- 
State  102  Ala.  78  ;  Winter  v.  State,  20  Ala.  39  ;  United  States  v.  Foulke, 
G  McLean,  349;  BiUard  v.  State,  30  Tex.  367;  Langford  v.  State,  32 
Neb.  783  ;  Owens  v.  State,  53  Ala.  400  ;  Clark  v.  Com.,  123  Pa.  555  ;  Com. 
V.  Harman,  4  Pa.  269,  374. 

8  State  V.  Nueslein,  25  Mo.  Ill  ;  State  v.  Sheeffer,  5  West.  Rep.  465;  89 
Mo.  271  ;  State  v.  Heed,  57  Mo.  252 ;  State  v.  Leeper,  78  Mo.  470  ;  State  v. 
Blunt,  10  West.  Rep.  49  ;  91  Mo.  503  ;  State  v.  Payton,  7  West.  Rep.  129  ; 
90  Mo.  220. 

9  State  V.  Rounds,  76  Me.  123.  And  see  Willis  v.  State  (Neb.),  61 
N.  W.  254. 

I*'  State  V.  Jefferson,  43  La.  Ann.  995.    And  see  Boulden  v.  State  (Ala.), 
15  So.  341. 
11  Burt  V.  State  (Miss.),  16  So.  343  ;  Brown  v.  State  (Miss.),  16  So.  203. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   33I 

that  it  is  a  doubt  based  on  reason  and  which  is  reasonable  in 
view  of  all  the  evidence.^ 

An  indefinable  doubt  which  cannot  be  stated  with  the  rea- 
son upon  which  it  rests  so  that  it  may  be  examined  and  dis- 
cussed can  hardly  be  considered  a  reasonable  doubt ;  as  such  a 
one  would  render  the  administration  of  justice  impracticable.^ 
This  definition — a  doubt  "  for  which  you  can  give  a  reason  " 
— has,  however,  been  criticised  in  one  State,^  and  held  erroneous 
in  two  or  three  others.*  In  Indiana  an  instruction  of  this 
kind  has  been  declared  misleading  and  improper,  as  placing  upon 
the  defendant  the  burden  of  furnishing  to  every  juror  a  reason 
why  he  is  not  satisfied  of  the  defendant's  guilt  with  that  cer- 
tainty which  the  law  requires  before  there  can  be  a  convic- 
tion.^ But  in  an  earlier  case  in  Indiana  it  was  said  to  be  a 
doubt  which  is  cognizable  by  the  reason  and  dwells  in  the 
understanding,  as  distinguished  from  a  doubt  which  is  raised 
by  fear,  hope,  love,  hatred,  fancy,  feeling,  prejudice,  interest, 
or  some  of  the  motives  which  sway  our  natures  and  which  flit 
through  the  emotions  instead  of  resting  in  the  mind.^ 

A  charge  on  circumstantial  evidence  should  be  so  guarded 
as  to  confine  the  action  of  the  jury  to  facts,  rather  than  mere 
surmises.^     The  jury  must  not  go  outside  of  the  evidence  to 

1  United  States  v.  Meagher,  37  Fed.  Rep.  875  ;  United  States  v.  McKenzie, 
35  Fed.  Rep.  836  ;  United  States  v.  Zes  Cloya,  35  Fed.  Rep.  493  ;  Kidd  v. 
State,  83  Ala.  58  ;  State  v.  Ching  Ling,  16  Ore.  419  ;  State  v.  Schaffer,  74 
Iowa,  704  ;  Carr  v.  State,  23  Neb.  749  ;  State  v.  Potts,  20  Nev.  389  ;  State  v. 
Streeter,  20  Nev.  403 ;  United  States  v.  King  and  Hopt  v.  Utah,  supra ; 
People  V.  Finley,  38  Mich.  482  ;  People  v.  Cox,  14  West.  Rep.  432  ;  70 
Mich.  247.  And  a  doubt  will  be  justified  by  such  facts  only  as  substantially 
impair  the  incriminating  proof.     State  v.  Dill  (Del.),  Nov.  6, 1889,  18  Atl.  763. 

2  People  V.  Guidici,  1  Cent.  Rep.  721 ;  100  N.  Y.  503  ;  U.  S.  v.  Johnson, 
26  Fed  Rep.  682  ;  3  Greenl.  on  Ev.  (14th  ed.)  §  29  n. 

3  State  V.  Sauer,  38  Minn.  438. 

*  Morgan  v.  State,  48  Ohio  St.  371.  In  Ray  v.  State,  50  Ala.  104,  the 
following  charge  was  declared  conf vising  and  misleading  :  "  A  reasonable 
doubt  has  been  defined  to  be  a  doubt  for  which  a  reason  could  be  given  ;  a 
probability  of  the  defendant's  innocence  is  a  just  foundation  for  a  reason- 
able doubt  of  his  guilt."  But  Cohen  v.  State,  50  Ala.  108,  approved  a  chai'ge 
couched  in  these  very  words,  and  this  was  followed  in  Hodge  v.  State,  97 
Ala.  37. 

^  Siberry  v.  State,  133  Ind.  677.  But  such  a  definition  was  held  not  ground 
for  reversal  when  given  in  instructions  where  the  court  was  seeking  to 
distinguish  a  reasonable  doubt  from  a  vague  and  imaginary  one.  State  v, 
Morey  (Ore.),  36  Pac.  373. 

6  Wall  V.  State,  37  Ind.  453.  ">  Myers  v.  State,  6  Tex.  Crini.  Apn.  1. 


332  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

hunt  up  doubts.^  To  justify  acquittal  the  doubt  must  grow 
out  of  the  evidence  alone.'^  It  must  rest  upon  the  fact  that  the 
evidence  is  insufficient  in  the  judgment  of  the  jury,  to  justify 
a  verdict  of  guilty  against  the  accused.^  It  must  be  honestly 
entertained,*  and  must  be  generated  by  an  insufficiency  of 
proof  which  fails  to  convince  the  judgment  and  conscience,  and 
satisfy  the  reason  of  the  jury  as  to  the  guilt  of  the  accused.^ 
The  prisoner  should  be  acquitted,  if,  upon  a  careful  review  of 
the  evidence,  the  jury  are  not  convinced  of  his  guilt.^ 

It  makes  no  difference  whether  the  doubt  arises  from  a 
defect  of  evidence  on  the  part  of  the  prosecution  or  from  the 
impression  made  by  evidence  for  the  defendant  J  It  may  arise 
from  the  want  of  evidence,^  or  the  jury  may  not  believe  some 
of  the  Avitnesses  and  may  entertain  a  doubt  in  spite  of  the  evi- 
dence.^ And  where  the  court  charged  that  a  reasonable  doubt 
usually  arose  from  a  want  of  evidence  or  a  conflict  of  evidence, 
this  was  held  reversible  error  in  a  case  where  whatever  doubt 
there  was  turned  solely  upon  the  credibility  of  a  part  of  the 
evidence.^^  An  instruction  is  clearly  erroneous  which  announces 
that  a  preponderance  of  evidence  in  favor  of  the  defendant  is 
necessary  in  order  to  raise  a  reasonable  doubt  of  his  guilt.^^ 
And  there  may  be  a  preponderance  of  evidence  or  a  weight  of 
preponderant  evidence  against  the  accused  and  yet  a  reason- 
able doubt  of  his  guilt.^^     There  must  be  more  than  a  prepon- 

1  Welsh  V.  state,  11  So.  450  ;  Miller  v.  People,  39  111.  457  ;  May  v.  People, 
60  111.  119  ;  Connaghan  v.  People,  88  111.  460  ;  Dunn  v.  People,  109  111.  635  ; 
Gannon  v.  People,  137  111.  507  ;  Wacaser  v.  People,  134  111.  438 ;  Minich  v. 
People,  8  Colo.  440 ;  State  v.  Pierce,  21  Mel.  448 ;  Kelly  v.  People  (Colo.) ; 
U.  S.  V.  Cassidy,  67  Fed.  Rep.  698. 

2  State  V.  Dill  (Del.),  Nov.  6,  1889, 18  Atl.  763  ;  Cicely  v.  State,  13  Smedes 
«&;  M.  211  ;  Browning  v.  State,  33  Miss.  47  ;  Bowler  v.  State,  41  Miss.  570. 

3  State  V.  Coleman,  20  S.  C.  445  ;  State  v.  Senn,  32  S.  C.  392 ;  United 
States  V.  Carpenter,  41  Fed.  Rep.  330  ;  United  States  v.  Keller,  19  Fed. 
Rep.  633. 

4  People  V.  Stiebenvoll,  62  Mich.  329. 

5  U.  S.  V.  Harper,  33  Fed.  Rep.  471  ;  Purkey  v.  State,  3  Heisk.  26. 

6  McGuire  v.  People,  44  Mich.  286  ;  Donnelly  v.  State,  26  N.  J.  L.  601. 

7  People  V.  Fairchild,  48  Mich.  31. 

8  Hodgkins  v.  State,  89  Ga.  761  ;  Long  v.  State,  38  Ga.  491  ;  Brown  i'. 
State,  105  Ind.  385  ;  Hale  v.  State  (Miss.),  16  So.  387. 

9  Mickey  v.  Coin.,  9  Bush,  593  ;  Williams  v.  Com.,  80  Ky.  313  ;  People  v. 
Kerr,  6  N.  Y.  Cr.  R.  406. 

"  McElven  v.  State,  30  Ga.  869.  "  State  v.  Porter,  64  la.  237. 

"  Walbridge  v.  State,  13  Neb.  236.     And  see  State  v.  Red,  53  la.  69. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   333 

derance  of  evidence  to  sustain  conviction ;  there  must  be  an 
abiding  conviction  to  a  moral  certainty  of  *the  truth  of  the 
charge,  derived  from  a  comparison  and  consideration  of  all  the 
evidence.^ 

If  the  rule  as  to  reasonable  doubt  be  applied  to  the  whole 
facts  of  the  case,  this  will  satisfy  the  demands  of  the  law.  It 
is  not  necessary  that  the  court  should  charge  the  reasonable 
doubt  as  to  every  particular  matter  constituting  the  principal 
issue  in  the  case.^  And  the  cases  sustain  the  proposition  that 
the  reasonable  doubt  the  jury  is  permitted  to  entertain  must  be 
on  the  whole  evidence  and  not  as  to  any  particular  fact  in  the 
case.^  Any  single  material  fact  may  not  be  singled  out :  it  is 
not  any  fact  proved  by  the  defence  which  will  justify  a  doubt 
of  guilt,  but  such  facts  only  as  substantially  impair  the  crimin- 
ating proof.*  And  since  the  case  must  be  tried  on  all  the 
e\ddence,  an  instruction  is  properly  refused  which  asks  the  jury 
to  acquit  if  a  single  fact  proved  to  their  satisfaction  is  incon- 
sistent with  the  defendant's  guilt.^ 

After  refusino^  to  charge  that  "  each  link  in  the  chain  of 
circumstantial  evidence  must  be  established  to  the  same  degree 
of  certainty  as  the  main  fact  itself,"  Judge  Daniels,  in  a 
recent  case  in  Xew  York,^  charged  the  jury  that  "  what  the 
law  designs  is  that  these  circumstances  should  be  laid  before 
the  jury  and  massed  together  by  them,  not  separately  or  dis- 
tinctly, but  together  for  the  purpose  of  determining  in  their 
minds  what  the  circumstances,  when  they  are  so  massed  and 
considered,  sustained  by  the  way  of  conclusion.  These 
matters  of  circumstantial  evidence  have  been  described,  not 
inaptly,  as  twigs,  one  of  which  would  resist  the  a])plication  of 
no  force  whatever,  but  when  you  bind  them  together,  one  twig 
after  another,  until  you  make  a  cable  or  mass  of  them,  they 

1  People  V,  Brannon,  47  Cal.  96  ;  People  v.  Ah  Sing,  51  Cal.  373,  citing 
Jane  v.  Com.,  2  Met.  (Ky.)  30  ;  State  v.  Oscar,  52  N.  C.  305. 

2  McCullough  V.  State,  23  Tex.  Crim.  App.  620  ;  Kingr.  State,  19  Id.  608  ; 
Willis  V.  State  (Neb.),  61  N.  W.  254. 

8  Webb  V.  State,  9  Tex.  Crim.  App.  490  ;  Barr  r.  State,  10  Id.  507  ;  Biessler 
V.  People,  117  111.  422  ;  Mullins  v.  People,  110  111.  42  ;  Leigh  v.  People,  113 
III.  372  ;  Davis  v.  People,  114  111.  98  ;  People  v.  Wolflf,  95  Mich.  625  ;  Jame- 
son V.  State,  25  Neb.  185  ;  Siebert  v.  People,  143  111.  571  ;  Weaver  v.  People, 
133  111.  536. 

■»  State  V.  Dill,  18  Atl.  763  :  State  v.  Schoenwald,  31  Mo.  147. 

^  State  V.  Johnson,  37  Minn.  493. 

6  People  V.  Kerr,  6  N.  Y.  Cr.  R.  406. 


33J:  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

present  then  a  bod}^  of  strength  that  can  overcome  iiearly  all 
forms  of  physical  resistance.  Circumstances  are  brought  into 
the  case,  not  to  be  considered  separately  and  thrown  away,  be- 
cause each,  in  and  of  itself,  does  not  establish  the  theory  on 
the  part  of  the  prosecution,  and  they  are  to  be  considered  at 
large,  one  Avith  the  other,  so  far  as  they  are  supported  and 
maintained  by  the  evidence."  ^ 

And  in  another  case,  where  a  similar  instruction  to  that 
refused  in  the  preceding  case  was  requested,  the  court  charged 
as  follows  :  "  The  defendant  is  presumed  to  be  innocent  of  the 
crime  charged  until  proved  guilty  beyond  a  reasonable  doubt, 
and  as  the  evidence  in  this  case  is  circumstantial,  it  is  your 
duty  to  give  all  the  circumstances  a  careful  and  conscientious 
consideration,  and  if,  upon  such  consideration,  the  minds  of 
the  jury  are  not  firmly  and  abidingly  satisfied  of  the  defend- 
ant's guilt ;  if  the  conscientious  judgment  of  the  jurors  wavers 
and  oscillates,  then  the  doubt  of  the  defendant's  guilt  is  reason- 
able, and  you  should  acquit."  ^ 

The  doubt  need  not  be  a  "  clear  and  strong  "  one.  The 
proper  word  is  "  reasonable,"  that  is,  just,  rational,  conform- 
able, or  agreeable  to  that  faculty  of  the  mind  by  which  it  dis- 
tinguishes truth  from  falsehood,  and  good  from  evil.  It  im- 
jDlies  a  want  of  that  fulness  and  completeness  of  proof  which 
would  enable  the  mind  satisfactorily  to  draw  the  conclusion  of 
guilt  from  the  facts  in  evidence.^ 

The  Supreme  Court  of  Oregon  has  recently,  in  a  well-con- 
sidered case,  decided  that  a  correct  definition  of  the  phrase  is 
contained  in  an  instruction  which  declares  that  a  reasonable 
doubt  "  is  not  every  doubt  and  is  not  a  captious  doubt,  that  it 
is  such  a  condition  of  mind  resulting  from  the  consideration  of 
the  evidence  before  the  jury  as  makes  it  impossible  for  them 
as  reasonable  men  to  arrive  at  a  satisfactory  conclusion  ; 
that  it  is  not  a  consciousness  that  the  conclusion  arrived 
at  may  possibly  be  erroneous,  but  such  a  state  of  mind  as 
deprives  one  of  the  ability  to  reach  a  conclusion  that  is 
satisfactory."  * 

In  Texas  the  following  has  been  approved  :  A   reasonable 

1  See  also  Taylor  v.  State,  9  Tex.  Crim.  App.  100  ;  Timmerman  v.  Terr., 
8  Wash.  445. 

2  State  V.  Hay  den,  45  la.  11.  «  Bowler  v.  State,  41  Miss.  570. 
*  State  V.  Roberts,  15  Ore.  187. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   335 

doubt  is  such  a  doubt  as  fairly  and  naturally  presents  itself 
from  the  facts  which  the  jury  believe  to  be  true.  All  the 
material  facts  which  the  jury  believe  to  be  true  should  lead  in 
such  a  manner  to  the  conclusion,  to  a  moral  certainty,  that  the 
defendant  is  guilty  as  that  they  cannot  reasonably  believe 
other  wise.i 

And  the  Supreme  Court  of  the  United  States  has  held  that 
the  jury  may  be  instructed  thus  :  "  If  after  an  impartial  com- 
parison and  consideration  of  all  the  evidence  you  can  candidly 
say  that  you  are  not  satisfied  of  the  defendant's  guilt,  you  have 
a  reasonable  doubt ;  but  if,  after  such  impartial  comparison  and 
consideration  of  all  the  evidence,  you  can  truthfully  say  that 
you  have  an  abiding  conviction  of  the  defendant's  guilt,  such 
as  you  would  be  willing  to  act  upon  in  the  more  weighty  and 
important  matters  relatmg  to  your  own  affairs,  you  have  no 
reasonable  doubt."  ^  While  the  Supreme  Court  of  Maine  has 
sanctioned  this :  A  doubt  which  a  reasonable  man  of  sound 
judgment  without  bias,  prejudice,  or  interest,  after  calmly, 
conscientiously,  and  deliberately  weighing  aU  the  testimony, 
would  entertain  as  to  the  guilt  of  the  accused.^ 

In  Georgia  it  has  been  said  that  there  is  no  error  in  defining 
reasonable  doubt  as  such  a  doubt  as  the  term  itself  implies,  as 
a  doubt  that  has  something  to  rest  upon,  some  reason  that  it  is 
based  on  ;  such  a  doubt  as  would  control  the  jury,  and  that 
they  would  be  governed  by  in  their  important  business  affairs  ; 
such  a  doubt  as  a  sensible,  honest-minded  man  would  reason- 
ably entertain  in  an  honest  investigation  after  truth ;  a  doubt 
that  would  arise  from  the  evidence  or  want  of  evidence  in  the 
case,  not  a  mere  vague  conjecture  or  a  bare  possibility  of  the 
innocence  of  the  accused.* 

A  definition  which  is  frequently  quoted  and  which  is  estab- 
lished as  a  safe  definition  is  that  of  Judge  Birchard  in  an  early 
case  in  Ohio.  According  to  that  learned  judge  there  is  a  rea- 
sonable doubt  if  the  material  facts  without  which  guilt  cannot 
be  established  may  be  fairly  reconciled  with  innocence.     When 

1  Monroe  v.  State,  23  Tex.  210  ;  76  Am.  Dec.  58  ;  Brown  v.  State,  1  Tex. 
App.  154. 

2  Hopt  V.  Utah,  120  U.  S.  430  ;  30  L.  Ed.  708.  See  also  State  v.  Gibbs,  10 
L.  R.  A.  749 ;  10  Mont.  213  ;  United  States  v.  King,  34  Fed.  Rep.  302  ; 
Owens  V.  State,  52  Ala.  400  ;  Mose  v.  State,  36  Ala.  211. 

8  State  V.  Reid,  62  Me.  129.     See  also  People  v.  Stott,  4  N.  Y.  Cr.  R.  306. 
*  Fletcher  v.  State,  90  Ga.  468. 


33G  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

a  full  and  candid  consideration  of  the  evidence  produces  a  con- 
viction of  guilt,  and  satisfies  the  mind  to  a  reasonable  certainty, 
a  mere  captious  or  ingenious  artificial  doubt  is  of  no  avail.^ 

And  in  that  justly  celebrated  opinion,^  so  many  times  quoted 
in  this  volume,  Chief  Justice  Shaw  said :  "  It  is  a  term  often 
used,  probably  pretty  well  understood,  but  not  easily  defined. 
It  is  not  mere  possible  doubt ;  because  everything  relating  to 
human  affairs,  and  depending  on  moral  evidence,  is  open  to 
some  possible  or  imaginary  doubt.  It  is  that  state  of  the  case 
which,  after  the  entire  comparison  and  consideration  of  all  the 
evidence,  leaves  the  minds  of  jurors  in  that  condition  that  they 
cannot  say  they  feel  an  abiding  conviction,  to  a  moral  cer- 
tainty, of  the  truth  of  the  charge.  The  burden  of  proof  is 
upon  the  prosecutor.  All  the  presumptions  of  law  independent 
of  evidence  are  in  favor  of  innocence ;  and  every  person  is  pre- 
sumed to  be  innocent  until  he  is  proved  guilty.  If  upon  such 
proof  there  is  reasonable  doubt  remaining,  the  accused  is  en- 
titled to  the  benefit  of  it  by  an  acquittal.  For  it  is  not  suf- 
ficient to  establish  a  probability,  though  a  strong  one  arising 
from  the  doctrine  of  chances,  that  the  fact  charged  is  more 
likely  to  be  true  than  the  contrary ;  but  the  evidence  must 
establish  the  truth  of  the  fact  to  a  reasonable  and  moral  cer- 
tainty ;  a  certainty  that  convinces  and  directs  the  understand- 
ing, and  satisfies  the  reason  and  judgment,  of  those  who  are 

1  Clark  V.  State,  12  Ohio,  483.     And  see  Morgan  v.  State,  48  Ohio  St.  371. 

2  That  delivered  in  the  case  of  Com.  v.  Webster,  5  Cush.  295  ;  52  Am. 
Dec.  711,  quoted  and  followed  as  to  this  point  in  the  following  cases  among 
others :  People  v.  Strong,  30  Cal.  151  ;  State  v.  Nelson,  11  Nev.  334  ;  State 
V.  Jones,  19  Nev.  365  ;  Donelly  v.  State,  26  N.  J.  L.  601  ;  People  v.  Schryver, 
42  N.  Y.  1 ;  People  v.  Beck,  58  Cal.  42  ;  Lovett  v.  State,  17  L.  R.  A.  705  ; 
Hampton  v.  State,  1  Tex.  Crim.  App.  652  ;  Pogue  ??.  State,  12  Id.  283.  For 
a  full  discussion  of  "what  constitutes  a  reasonable  doubt  in  criminal 
cases,"  see  an  annotation  by  the  author,  appended  to  the  case  of  Lovett  v. 
State,  17  L.  R.  A.  705.  In  addition,  see  the  following  recent  cases  which 
have  considered  the  subject :  People  v.  Smith  (Cal.),  39  Pac.  40  ;  Gregg  v. 
State  (Ala.),  17  So.  321  ;  Chitister  v.  State  (Tex.  Crim.  App.),  28  S.  W.  683 ; 
Loggins  V.  State,  32  Tex.  Ci-im.  App.  364  ;  Carson  v.  State  (Tex. 
Crim.  App.),  30  S.  W.  799 ;  Hester  v.  Com.  (Ky.),  29  S.  W.  875  ;  Franklin 
V.  State  (Tex.  Crim.  App.),  31  S.  W.  643  ;  De  Los  Santos  v.  State  (Tex. 
Crim.  App.),  26  S.  W.  831.  And  in  the  following  cases,  instructions  in- 
volving this  question  have  been  held  erroneous  :  Jackson  v.  State  (Ala.), 
17  SO.-333  ;  Rhea  v.  State  (Ala.),  14  So.  853  ;  State  v.  Smith  (Conn.),  31  Atl. 
206 ;  Le  Comte  v.  U.  S.,  23  Wash.  L.  Rep.  482  ;  U.  S.  v.  Romero  (Ariz.),  35 
Pac.  1059  ;  Cochran  v.  U.  S.,  157  U.  S.  286. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    337 

bound  to  act  conscientiously  upon  it.  This  we  take  to  be  proof 
beyond  reasonable  doubt ;  because  if  the  law,  which  mostly  de- 
pends upon  considerations  of  a  moral  nature,  should  go  further 
than  this,  and  require  absolute  certainty,  it  Avould  exclude  cir- 
cumstantial evidence  altogether." 

The  rules  of  evidence,  as  founded  on  reason  and  consecrated 
in  the  judgments  of  the  courts,  constitute  the  best  means  for 
discovering  truth,  and  are  an  integral  part  of  our  legal  system, 
essential  alike  for  private  and  social  security.^  Nevertheless, 
language  of  most  dangerous  tendency  in  regard  to  them  has 
occasionally  fallen  from  learned  judges,  which  implies  that  they 
may  be  modified,  according  to  the  enormity  of  the  crime,  or 
the  weightiness  of  the  consequences  which  attach  to  conviction. 
Lord  Finch,  afterwards  Lord  Chancellor  Nottingham,  on  the 
trial  of  Lord  Cornwallis,  said,  "  The  fouler  the  crime  is,  the 
clearer  and  the  plainer  ought  the  proof  to  be."  ^  "  The  more 
flagrant  the  crime  is,"  said  Mr.  Baron  Legge,  "  the  more  clearly 
and  satisfactorily  you  will  expect  that  it  shall  be  made  out  to 
you."  2  Mr.  Justice  Holroyd  is  represented  to  have  said  that 
"  the  greater  the  crime,  the  stronger  is  the  proof  required  for 
conviction."  *  And  similar  language  is  to  be  found  in  some  of 
the  text-books.^ 

Upon  a  trial  for  high  treason.  Lord  Chief  Justice  Dallas, 
after  adverting  to  the  extreme  guilt  of  the  crime,  as  seeking 
the  subversion  of  the  established  government,  and  aiming  at 
the  property,  the  liberty,  and  the  lives  of  all,  said  :  "  Still,  how- 
ever, nothing  will  depend  upon  the  comparative  magnitude  of 
the  offence ;  for  be  it  great  or  small,  every  man  standing  in  the 
situation  in  which  the  prisoner  is  placed  is  entitled  to  have  the 
charge  against  him  clearly  and  satisfactorily  proved  ;  with  only 
this  difference  (and  I  make  the  observation  at  the  outset,  as 
being  in  favor  of  the  prisoner),  that  in  proportion  to  the  magni- 
tude of  the  offence,  and  the  consequences  which  result  from  his 
conviction,  ought  the  proof  to  be  clear  and  satisfactory."  ^  In 
the  case  of  the  Glasgow  cotton-spinners  for  conspiracy  and 
murder,  the  learned  Lord  Justice  Clerk  Boyle  said    that  the 

1  Giles  V.  State,  6  Ga.  27G. 

2  7  St.  Tr.  149.    And  see  Rex  v.  Crossley,  26  St.  Tr.  218. 

8  Rex  V.  Blandy,  18  St.  Tr.  1186.        *  Rex  v.  Hobson,  1  Lewins  C.  C.  261. 
*  See  the  work  of  Judge  Swift  on  Evidence,  p.  151. 
6  Rex  V.  Ings,  33  St.  Ti\  1135. 
22 


338  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

magnitude  of  the  charge  ought  to  have  no  other  effect  than 
rendering  it  more  necessary  that  the  jury  should  be  fully  satis- 
fied that  the  evidence  is  clear  upon  the  subject.^  The  distinc- 
tion was  more  broadly  laid  down  by  the  late  Lord  Justice 
Clerk  Cockburn,  in  Madeleine  Smith's  case.  "  In  drawing  an 
inference,"  said  the  learned  judge,  "  you  must  always  look  to 
the  import  and  character  of  the  inference  which  you  are  asked 
to  draw ; "  and  the  same  distinction  pervades  the  whole  of  the 
charge  in  that  celebrated  case. 

These  dicta  are  opposed  to  the  principles  of  reason,  and  in- 
consistent with  all  established  rules  of  law.  No  legal  doctrine 
is  more  firmly  settled  than  that  there  is  no  difference  between 
the  rules  of  evidence  in  civil  and  criminal  cases.  The  rules 
which  govern  the  admission  of  evidence  apply  with  equal 
authority  and  force  in  criminal  and  civil  proceedings.  These 
rules  must  be  received  in  all  cases  as  the  surest  guide  which 
the  law  affords  for  ascertaining  the  truth  of  any  alleged  mat- 
ter of  fact,  and  must  be  the  same  both  on  the  criminal  and 
civil  side  of  the  court,  whatever  the  nature  of  the  fact  to  be  in- 
vestigated. There  can  be  no  safe  departure  from  them  under 
the  influence  of  a  feeling  of  tenderness  or  humanity  for  persons 
charged  with  crime.^  If  under  any  circumstances  they  may  be 
relaxed  according  to  notions  of  supposed  expediency,  they 
cease  to  be,  in  any  correct  and  intelligible  sense,  rules  for  the 
discovery  of  truth,  and  the  most  valued  rights  of  civilized  men 
become  the  sport  of  chance.  The  logical  consequences  of  any 
such  power  of  relaxation  would  be,  that  the  rules  of  evidence 
are  radically  different  in  civil  and  criminal  cases,  and  different 
even  in  criminal  cases,  as  they  are  applied  to  particular  classes 
of  crime,  according  to  some  arbitrary  and  imaginary  measure 
for  estimating  their  relative  enormity  and  penalty.  Is  the  dic- 
tum, it  may  be  asked,  to  be  restricted  to  cases  where  the  con- 
sequence of  conviction  may  be  loss  of  life  ?  Is  it  to  be  repudi- 
ated when  it  may  be  followed  by  the  inferior  penalties  of  fine 

*  Reg.  V.  Hanson  and  others,  Court  of  Justiciary,  1838  ;  Short-hand  Rep. 
366. 

2  See  remarks  of  Abbott,  J.,  in  Rex  v.  Watson,  2  Stark.  (3  C.  C.  L.)  155, 
and  of  Walworth,  J.,  in  People  i\  Thayers,  1  Park.  Cr.  R.  595  ;  Rex  v. 
Murphy,  8  C.  &  P.  (34  E.  C.  L.)  306  ;  Lord  Melville's  Case,  29  How.  St. 
Tr.  763 ;  Com.  v.  Abbott,  130  Mass.  472 ;  U.  S.  v.  Britton,  2  Mason,  464  ; 
Roscoe  Cr.  Ev.  (8th  Am.  Ed.)l ;  3  Russ.  on  Crimes  (9th  Am.  Ed.),  213  ;  Brown 
V.  Schock,  77  Pa.  St.  471. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.    339 

or  imprisonment  ?  Is  it  to  be  applied  or  rejected  in  application 
to  the  numerous  cases,  civil  as  well  as  criminal,  where  physical 
and  social  consequences  may  follow,  which,  though  of  a  dif- 
ferent kind,  may  be  scarcely  less  fatal  to  the  individual  than 
loss  of  liberty,  or  even  of  life  itself  ?  And  if  the  maxims  of 
evidence  may  be  made  more  stringent  in  one  direction,  there  is 
no  reason  why  they  may  not  be  relaxed  in  another,  according 
to  the  greater  difficulties  incidental  to  the  proof  of  the  more 
atrocious  and  dangerous  forms  of  crime,  as  some  writers  on  the 
civil  law  have  actually  maintained,  A  distinguished  historical 
writer,  whose  opinions  on  every  question  of  legal  science  or  of 
constitutional  principle  are  eminently  entitled  to  respect,  with 
the  strictest  philosophical  truth,  and  with  great  felicity  of  illus- 
tration, has  thus  denounced  the  doctrine  under  review :  "  The 
rules  of  evidence  no  more  depend  on  the  magnitude  of  the  in- 
terests at  stake  than  the  rules  of  arithmetic.  We  might  as  well 
say  that  we  have  a  greater  chance  of  throwing  a  size  when  we 
are  playing  for  a  penny,  than  when  we  are  playing  for  a  thou- 
sand pounds,  as  that  a  form  of  trial  which  is  sufficient  for  the 
purposes  of  justice,  in  a  matter  of  liberty  and  property,  is  insuf- 
ficient in  a  matter  affecting  life.  Nay,  if  a  mode  of  proceeding 
be  too  lax  for  capital  cases,  it  is,  d  priori,  too  lax  for  all  others  ; 
for  in  capital  cases  the  principles  of  human  nature  will  always 
afford  considerable  security.  No  judge  is  so  cruel  as  he  who 
indemnifies  himself  for  scrupulosity  in  cases  of  blood,  by  license 
in  affairs  of  smaller  importance.  The  difference  in  tale  on  the 
one  side  far  more  than  makes  up  for  the  difference  in  weight 
on  the  other."  ^ 

While  the  rules  of  evidence  are  the  same  in  civil  and  crim- 
inal cases,  there  is  a  difference  in  the  nature  of  the  issue,  and 
consequently,  as  has  been  pointed  out,  in  the  quant  ion  of  proof  ,2 
For  while,  in  civil  cases,  a  preponderance  of  evidence  is  sufficient 
to  justify  a  verdict,  in  criminal  cases,  a  conviction  cannot  be  had 
upon  any  preponderance  of  evidence  unless  it  generates  full  belief 
to  the  exclusion  of  all  reasonable  doubt.^  This  difference  be- 
tween the  rules  as  to  presumptions  in  civil  and  criminal  cases  has 
been  said  to  arise  from  this  :  that  in  civil  cases  it  is  always 
necessary  for  a  jury  to  decide  the  question  at  issue  between  the 
parties.     However  much  therefore  they  may  be  perplexed,  they 

1  1  Macaulay's  Essays  (1st  Ed.),  143. 

2  2  Bish.  Crim.  Proc.  (3d  Ed.)  §  1064.  s  3  Greenl.  on  Ev.  §  29 


340  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

cannot  escape  from  giving  a  verdict  founded  upon  one  view  or 
the  other  of  the  conflicting  facts  before  them.  Presumptions 
therefore  are  necessarily  made  upon  comparatively  weak 
grounds.  But  in  criminal  cases  there  is  always  a  result  open 
to  the  jury  which  is  practically  looked  upon  as  merely  negative, 
namely,  that  which  declares  the  accused  to  be  not  guilty  of  the 
crime  with  which  he  is  charged.^ 

It  is  contended  that  there  is  an  exception  to  this  general  rule 
where  the  issue  in  a  civil  case  is  one  in  which  crime  is  imputed 
and  the  guilt  or  innocence  of  a  party  is  directly  or  incidentally 
involved.  This  exception  is  most  frequently  invoked  in  actions 
of  libel  and  slander,  where  a  justification  imputing  crime  is 
pleaded,  and  actions  on  fire  policies  where  the  defence  is  that 
the  property  was  wilfully  burned  by  the  insured.  The  doc- 
trine that,  in  an  action  on  a  policy,  the  defence  that  the  plaint- 
iff had  wilfully  set  fire  to  the  premises  must  be  as  fully  and 
satisfactorily  proved  as  if  the  plaintiff  were  on  trial  on  indict- 
ment, originated  in  the  case  of  Thurtell  v.  Beaumont?' 

In  an  early  case  in  Ohio  the  defendant  was  charged  with 
having  burnt  his  own  boat  with  the  intent  of  defrauding  the 
company  of  the  insurance  money.  It  was  held  that  the  evi- 
dence must  be  so  strong  as  to  satisfy  the  jury  beyond  a  reason- 
able doubt  that  the  boat  was  so  burnt.^ 

And  in  a  later  case  it  was  said  to  be  established  law  that,  in 
civil  as  well  as  in  criminal  cases,  a  party  cannot  be  found  guilty 
of  a  crime  unless  upon  proof  which  excludes  all  reasonable 
doubt.* 

A  case  in  Iowa  which  has  been  often  cited  was  an  action  for 
burning  the  plaintiff's  wheat.     The  defendant  insisted  that,  to 

1  McNally  Ev.  p.  578  ;  1  Phil.  Ev.  (10th  Ed.)  456  ;  1  Roscoe's  Cr.  Ev.  (8th 
Am.  Ed.)  23. 

2  1  Bing.  (8  E.  C.  C.)  339.  And  this  is  said  to  he  the  rule  in  England.  See 
1  Taylor's  Ev.  (5th  Ed.)  97a.  In  England  there  was  a  reason  for  carrying 
the  distinction  thus  made  between  civil  and  criminal  cases  into  suits  of 
this  description.  There,  as  Lord  Kenyon  remarked  in  Cork  v.  Field,  3  Esp. 
133,  "where  a  defendant  justifies  words  which  amount  to  a  charge  of 
felony,  and  proves  his  justification,  the  plaintiff  may  be  put  upon  his  trial 
by  that  verdict  without  the  intervention  of  a  grand  jury."  See  note  (a)  to 
Willmett  V.  Harmer,  8  C.  &  P.  695.  And  see  Stephen's  Dig.  Ev.  Art.  94  ,  1 
Greenl.  Ev.  (14th  Ed.)  §  13a,  note. 

3  Lexington  Ins.  Co.  v.  Pauer,  16  Ohio,  324.  And  see  2  Greenl.  on  Ev. 
§408. 

4  Strader  v.  Mullane,  17  Ohio  St.  624. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   341 

recover  for  an  act  which  is  a  crime,  the  cause  of  action  must 
be  made  out  with  the  same  degree  of  proof  as  would  be  neces- 
sary to  convict  the  defendant  upon  an  indictment.  And  this 
position  was  sustained.^  But  this  case  has  been  since  overruled.^ 
And  the  generally  received  doctrine  noAv  is  that  there  is  no 
rule  of  evidence  which  requires  a  greater  degree  of  proof  to 
authorize  a  verdict  in  one  civil  action  than  in  another  by  reason 
of  the  peculiar  questions  involved,-^  and  that  in  an  action  upon 
a  policy  of  insurance  where  the  defence  is  that  the  plaintiff 
wilfully  set  fire  to  the  building  insured,  the  rule  of  evidence  is 
the  same  as  in  other  civil  cases,  and  the  jury  must  determine 
the  issue  upon  the  weight  or  preponderance  of  evidence.* 

Judge  Depew,  delivering  the  judgment  of  the  court,  in  a 
case  cited  in  the  last  note^  to  the  former  paragraph,  said  that, 
"  actions  of  libel  and  slander,  on  an  issue  upon  a  justification, 
might  be  regarded  as  exceptional  in  character.  A  defendant 
in  such  an  action,  if  he  was  warranted  in  giving  publicity  to 
the  defamatory  words  by  the  occasion  of  publishing  or  uttering 
them,  may  discharge  himself  if  he  shows  by  a  preponderance 
of  evidence  that  the  occasion  was  such  as  to  make  the  com- 
munication a  privileged  communication.  But  if  he  published 
or  uttered  the  defamatory  words  under  other  circumstances, 
in  doing  so  he  was  a  mere  volunteer  without  any  personal  or 
private  interest  in  the  subject-matter.  In  putting  his  justifica- 
tion on  the  ground  of  the  plaintiff's  guilt  of  the  accusation,  he 
undertakes  to  prove  the  plaintiff's  guilt,  which  comprises  not 
only  the  doing  of  the  act,  but  also  the  intent  which  the  law 
denounces  as  criminal.  As  a  matter  of  pleading,  he  is  bound  to 
plead  with  precision,  a  justification  as  broad  as  the  accusation 
attempted  to  be  justified  and  containing  all  the  ingredients  nec- 
essary to  the  commission  of  the  crime ;  and  as  a  question  of 

1  Barton  v.  Thompson,  46  la.  30.  See  further  to  the  same  effect,  McCon- 
nell  V.  Delaware  Mut.  Safety  Ins.  Co.,  18  111.  228  ;  Butneau  v.  Hobbs,  35 
Me.  227. 

2  Welch  V.  Jugenheimer,  56  la.  11  ;  Kendig  i\  Overhulser,  58  la.  195. 

3  Robinson  v.  Randall,  82  111.  521  ;  Hall  v.  Barnes,  Id.  228  ;  Watking  v. 
Wallace,  19  Mich.  57  ;  Elliott  v.  Van  Buren,  33  Mich.  49. 

*  See  Kane  v.  Hibernia  Ins.  Co.,  39  N.  J.  L.  697  ;  Washington  Union  Ins. 
Co.  V.  Wilson,  7  Wis.  169  ;  Wright  v.  Haedy,  22  AVis.  348 ;  Blaeser  v.  Mil- 
waukee Mech.  Mut.  Ins.  Co.,  37  Wis.  31  ;  Rothschild  v.  Am.  Ins.  Co.,  62 
Mo.  356  ;  Bradish  v.  Bliss,  35  Vt.  326  ;  Scott  v.  Home  Ins.  Co.,  1  Dill.  105 ; 
Hoffman  v.  W.  M.  &  F.  Ins.  Co.,  1  La.  Ann.  216. 

5  Kane  v.  Hibernia  Ins.  Co.,  supra. 


342   THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

evidence  he  is  bound  to  make  his  proof  co-extensive  with  the 
averments  in  his  plea.  Under  such  circumstances  it  is  neither 
impolitic  nor  unreasonable  to  require  the  truth  of  the  accusa- 
tion to  be  established  by  the  same  degree  of  proof  as  is  re- 
quired on  the  trial  of  an  indictment."  But  several  of  the 
judges  declined  to  be  committed  to  these  propositions.  And 
it  is  perhaps  the  better  rule  that  there  is  no  difference  between 
a  justification  in  slander  and  any  other  case  where  the  plaint- 
iff's cause  of  action,  or  the  defendant's  ground  of  defence,  is  to 
be  supported  by  proving  that  the  other  party  has  committed  a 
crime.^ 

In  an  action  for  slander  in  charging  the  plaintiff  with 
having  committed  adultery,  the  court  thought  it  best  to  draw 
the  line  between  the  cases  Avhere  full  proof  beyond  a  reason- 
able doubt  shall  be  required,  and  those  where  a  less  degree  of 
assurance  may  serve  as  the  basis  of  a  verdict, "  where  the  juror 
instinctively  places  it,  making  it  to  depend  rather  upon  the 
results  which  are  to  follow  the  decision,  than  upon  a  philo- 
sophical analysis  of  the  character  of  the  issue."  ^ 

A  learned  judge  has  said  that  "  it  is  as  unreasonable  to  re- 
quire a  civil  suit  to  be  determined  by  the  rules  of  evidence 
applicable  to  a  criminal  prosecution,  as  it  would  be  to  require  a 
tailor  to  measure  A.  when  he  is  going  to  make  a  suit  of  clothes 
for  B.  The  measure  of  proof  must  be  determined  by  the  char- 
acter of  the  issue  being  tried."  ^ 

And  where  the  defendant  was  charged  with  being  the  father 
of  a  bastard  child,  and  the  object  of  the  suit  was  to  compel 
him  to  contribute  towards  the  child's  support,  it  was  held  not 
necessary  that  the  jury  should  be  satisfied  beyond  a  reasonable 
doubt  of  his  guilt.* 

In  trover,  where  the  evidence  was  such  as  to  involve  a 
charge  of  larceny,  a  direction  to  the  jury  that  the  evidence,  to 
justify  a  verdict  against  the  defendant,  must  satisfy  them  of 
the  truth  of  the  charge  beyond  a  reasonable  doubt,  was  held  to 
be  erroneous.^ 

1  Briggs  V.  Cooper,  cited  in  Bradish  v.  Bliss,  35  Vt.  326.     And  see  Folsom 
V.  Brown,  25  N.  H.  114. 

2  Ellis  V.  Buzzell,  60  Me.  209. 

8  Judge  Walton,  in  Knowles  v.  Scribner,  57  Me.  495. 

*  Knowles  v.  Scribner,  supra.     And  see  People  v.  Phalen,  49  Mich.  492. 

6  Bissell  V.  West,  35  Ind.  54. 


THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT.   343 

In  an  action  to  recover  for  cattle  which  had  been  stolen, 
it  was  held  not  essential  to  recovery  that  the  felonious  taking 
must  be  made  out  in  the  same  manner  as  if  it  was  a  public 
prosecution.^ 

And  where  the  plaintiff  sued  for  the  wrongful  and  malicious 
killing  of  her  husband,  it  was  laid  doAvn  that  it  was  not  neces- 
sary to  a  recovery  of  damages  that  the  defendant's  guilt  should 
be  established  beyond  a  reasonable  doubt,  but  that  it  was  suffi- 
cient for  the  plaintiff  to  make  out  her  case  in  accordance  with 
the  rule  prevalent  in  other  civil  cases.^ 

In  a  case  in  Minnesota  the  question  arose  whether  a  charge 
of  fraud  in  a  civil  action,  like  the  charge  of  crime  in  an  indict- 
ment, must  be  proved  by  satisfactory  evidence  excluding  all 
reasonable  doubts.  The  cause  of  action,  if  sustained,  implied 
an  offence  against  the  statute ;  and  it  was  claimed  the  court 
must  first  determine  whether  the  facts  stated  in  the  pleadings, 
or  adduced  by  the  evidence,  were  sufficient  upon  which  to 
predicate  a  criminal  charge,  and,  if  so,  then  to  apply  the 
criminal  rule  to  the  trial  of  the  case,  even  though  the  issue 
actually  raised  by  the  pleadings  in  no  way  involved  the 
determination  of  the  fact  of  a  criminal  offence  having  been 
committed.  The  court  said  this  was  unsound  in  principle  and 
unsupported  by  authority .^ 

And  an  instruction  that  "  in  order  to  set  aside  a  will, 
on  the  ground  of  undue  influence,  it  must  be  shown  that  the 
circumstances  of  its  execution  are  inconsistent  with  any  other 
hypothesis  than  such  undue  influence,"  was  declared  manifest- 
ly erroneous,* 

In  an  action  on  a  promissory  note,  the  defence  that  the 
note  was  obtained  by  false  and  fraudulent  representations, 
might,  it  was  held,  be  sustained  by  a  preponderance  of  evi- 
dence, as  in  other  civil  cases.^ 

"With  regard,  however,  to  the  quantity  of  evidence  required 
to  prove  the  fact  of  adultery,  there  seems  to  be  no  approach 
to  uniformity  in  the  authorities. 

1  Munson  v.  Atwood,  30  Conn.  102.  To  the  same  effect  see  Hitchcock 
V.  Hunger,  15  N.  Y.  102. 

2  Nichols  V.  Winfrey,  79  Mo.  544. 

3  Burr  V.  "Wilson,  22  Minn.  206.  See  also  Stranathan  v.  Greaves,  26 
Ohio  St.  2.  *  Gay  v.  Gillelan,  92  Mo.  250, 

'  Gordon  v.  Parmlee,  15  Gray,  413. 


344  THE  QUANTITY  OF  EVIDENCE  NECESSARY  TO  CONVICT. 

Lord  Stowell  stated  the  rule  to  be  that  "  there  must  be  such 
proximate  circumstances  proved  as,  by  former  decisions,  or  on 
their  own  nature  and  tendency,  satisfy  the  legal  conviction  of 
the  court  that  the  criminal  act  has  been  committed."  ^ 

Elsewhere  it  is  said  that  the  court  is  not  warranted  in  a 
conclusion  when  all  that  is  proved  is  susceptible  of  a  construc- 
tion of  innocence.^ 

An  action  for  divorce  on  the  ground  of  adultery  is  not 
infrequently  attended  with  the  most  serious  consequences, 
destroying  the  family,  leaving  a  stain  upon  the  name  of  in- 
nocent offspring,  and  affecting  the  property  rights  and  civil 
status  of  the  parties,  and  therefore  it  would  seem  eminently 
proper  that  the  court  should  proceed  with  great  caution,  and 
require  the  party  making  the  charge  to  establish  the  truth  of 
the  fact  to  a  reasonable  and  moral  certainty.^ 

1  Williams  v.  Williams,  2  Hagg.  Con.  299.  It  may  be  remarked  here 
that  by  the  common  law  the  act  of  adultery  was  not  punishable  by  indict- 
ment, but  was  left  to  the  cognizance  of  the  spiritual  courts  alone.  See  2 
Greenl.  on  Ev.  §  48. 

2  Hamerton  v.  Hamerton,  2  Hagg.  Con.  13  ;  Conger  v.  Conger,  82  N.  Y. 
603 ;  Mayer    v.  Mayer,   21   N.  J.  Eq.   246  ;  Dailey  v.  Dailey,  Wright,  514. 

*  Freeman  v.  Freeman,  31  Wis.  235.  And  see  Berckmans  v.  Berckmans, 
17  N.  J.  Eq.  453 ;  Warner  v.  Com.,  2  Va.  Cas.  105. 


PABT  V. 

PROOF  OF  THE  CORPUS  DELICTI. 


DIVISION  I. 

GENERAL   PRINCIPLES. 


CHAPTER  L 

GENERAL  DOCTRINE  AS  TO  THE  PROOF  OF  THE  CORPUS  DELICTI. 

By  the  corpus  delicti  is  meant  the  existence  of  a  criminal 
fact.^  On  a  trial  for  arson  the  corpus  delicti  consists  not  only 
of  the  fact  that  a  building  has  been  burned,  but  also  that  it 
was  wilfully  fired  by  some  responsible  person  :  ^  on  a  trial  for 
larceny,  that  the  property  Avas  so  taken  and  carried  away 
from  the  possession  of  the  owner  as  to  constitute  such  taking 
and  carrying  away  a  felony .^ 

Proof  of  the  charge  in  criminal  cases  involves  the  establish- 
ment of  two  distinct  propositions  :  namely,  that  an  act  has 
been  committed  from  which  legal  responsibility  arises,  and 
that  the  guilt  of  such  act  attaches  to  a  particular  individual.* 

The  evidence,  however,  is  not  ahvays  separable  into  distinct 
parts,  or  applicable  to  each  of  those  propositions.  Where  the 
defendants  were  accused  of  the  theft  of  a  horse,  the  corpus 
delicti  was  shown  by  the  same  facts  as  were  admitted  to  con- 
nect the  defendants  with   the   crime.     The   horse  had  been 

1  See  People  v.  Palmer,  109  N.  Y.  110. 

2  Phillips  V.  State,  29  Ga.  105  ;  Winslow  v.  State,  76  Ala.  42  ;  Carlton  v. 
People,  150  111.  181. 

»  Tyner  v.  State,  5  Humph.  383. 

*  Smith  V.  Com.,  21  Grat.  809  ;  Johnson  x\  Com.,  29  Grat.  796  ;  Willard 
V.  State,  27  Tex.  Crim.  App.  386. 

345 


346  DOCTRINE  AS  TO  PROOF  OF  CORPUS  DELICTI. 

placed  by  the  owner  in  a  stable  belonging  to  a  neighbor  with 
whom  he  was  staying  that  night,  and  the  saddle  and  bridle 
were  deposited  near  the  door.  In  the  morning  horse,  saddle, 
and  bridle  were  gone,  and  the  owner  never  thereafter  saw 
them.  It  was  shown  that  on  the  day  and  night  after  the 
disappearance  of  the  horse,  the  defendants  had  gone  north- 
ward with  the  team  and  wagon  of  F.,  one  of  them.  But  F. 
drove  only  two  horses,  while  there  were  seen  the  tracks  of 
three  horses.  It  was  also  shown  that  a  couple  of  men  with  a 
span  of  horses  and  a  wagon,  and  a  led  horse,  were  seen  stop- 
ping a  short  distance  from  the  road  travelled  by  the  defend- 
ants. The  description  of  the  horses  and  wagon  corresponded 
with  those  of  the  accused,  as  did  that  of  the  led  horse  with 
the  animal  alleged  to  have  been  stolen.  These  wath  other 
minute  facts  were  held  sufficient  to  establish  the  fact  of  the 
stealing,  and  to  convict  the  defendants.^ 

On  trial  of  an  indictment  for  bribery,  proof  of  the  corpus 
delicti  was  said  to  be  the  same  thing  as  proof  of  the  defend- 
ant's connection  with  the  crime.^ 

But  in  another  case  where  the  trial  court  had  instructed  the 
jury  that  the  circumstances  were  so  inseparable  that  they 
must  determine  from  the  same  evidence  the  existence  of  the 
corpus  delicti  and  the  connection  of  the  defendant  with  the 
crime,  the  conviction  was  reversed.* 

An  illustration  of  the  proposition  just  laid  down  is  to  be 
found  in  the  case  of  adultery.  It  is  evident  that  direct  proof 
ought  not  to  be  required  to  sustain  a  charge  of  this  character, 
and  that  circumstantial  evidence  must  generally  be  relied  on. 
And  generally  those  circumstances  which  show  the  commission 
of  the  offence  will  establish  also  the  guilt  of  the  parties 
charged. 

Concerning  this.  Lord  Stowell  said,  in  a  passage  often 
quoted  :*  "  It  is  a  fundamental  rule  that  it  is  not  necessary  to 
prove  the  direct  fact  of  adultery,  because,  if  it  were  otherwise, 
there  is  not  one  case  in  a  hundred  in  which  that  proof  would 
be  attainable — it  is  very  rarely  indeed  that  parties  are  sur- 
prised in  the  direct  fact  of  adultery.     In  every  case,  almost, 

1  State  V.  Folwell  et  ah,  14  Kan.  105. 

"  People  V.  O'Neil,  109  N.  Y.  251.   See  opinion  of  Andrews,  J. 

3  State  V.  Davidson,  30  Vt.  377. 

*  Loveden  v.  Loveden,  4  Eng.  Ecc.  R.  461. 


DOCTRINE  AS  TO  PROOF  OF  CORPUS  DELICTI.  347 

the  fact  is  inferred  from  circumstances  that  lead  to  it  by  fair 
inference  as  a  necessary  conclusion  ;  and  unless  this  were  the 
case,  and  unless  this  were  so  held,  no  protection  whatever 
could  be  given  to  marital  rights.  What  are  the  circumstances 
which  lead  to  such  a  conclusion  cannot  be  laid  down  univer- 
sally, though  many  of  them,  of  a  more  obvious  nature  and  of 
more  frequent  occurrence,  are  to  be  found  in  the  ancient 
books— at  the  same  time  it  is  impossible  to  indicate  them 
universally,  because  they  may  be  infinitely  diversified  by  the 
situation  and  character  of  the  parties,  by  the  state  of  general 
manners,  and  by  many  other  incidental  circumstances,  ap- 
parently slight  and  delicate  in  themselves,  but  which  may 
have  most  important  bearings  in  decisions  upon  the  particular 
case.  The  only  general  rule  that  can  be  laid  down  upon  the 
subject  is  that  the  circumstances  must  be  such  as  would  lead 
the  guarded  discretion  of  a  reasonable  and  just  man  to  the 
conclusion ;  for  it  is  not  to  lead  a  harsh  and  intemperate  judg- 
ment moving  upon  appearances  that  are  equally  capable  of 
two  interpretations ;  neither  is  it  to  be  a  matter  of  artificial 
reasoning  judging  upon  such  things  differently  from  what 
would  strike  the  careful  and  cautious  consideration  of  a  dis- 
creet man."  One  making  an  accusation  of  this  kind  should  be 
able  to  allege  times  and  places  and  to  make  proof  of  circum- 
stances with  some  degree  of  particularity.  When  facts  and 
circumstances  introduced  in  evidence  fairly  and  reasonably 
lead  to  the  conclusion  that  the  act  has  been  committed,  the 
court  or  jury  may  find  the  charge  sustained.^  Where  from  the 
evidence  in  an  action  for  divorce  the  probabilities  are  equal  as 
to  guilt  or  innocence,  the  interpretation  of  innocence  will  be 
adopted  .2 

The  most  usual  circumstances  relied  on  to  sustain  this  charge 
are  thus  noticed  by  Chief  Justice  Shaw:  "Suppose,  for  in- 
stance, a  married  woman  had  been  shown  by  undoubted  proof 
to  have  been  in  an  equivocal  situation  with  a  man  not  her  hus- 
band, leading  to  a  suspicion  of  the  fact.  If  it  were  proved 
that  she  had  previously  shown  an  unwarrantable  predilection 
for  that  man ;  if  they  had  been  detected  in  clandestine  cor- 
respondence, had  sought  stolen  interviews,  made  passionate 
declarations ;  if  her  affection  for  her  husband  had  been  alien- 

1  Cooke  V.  Cooke,  152  111.  286  ;  Miller  v.  Miller,  20  N.  J.  Eq.  217. 

2  O'Brien  v.  O'Brien  (N.  J.  Eq.),  30  Atl.  875. 


348  DOCTEINE  AS  TO  PROOF  OF  CORPUS  DELICTI. 

atecl ;  if  it  were  shown  that  the  mind  and  heart  were  already 
depraved,  and  nothing  remained  wanting  but  an  opportunity 
to  consummate  the  guilty  purpose,  then  proof  that  such  oppor- 
tunity had  occurred  w^ould  lead  to  the  satisfactory  conclusion 
that  the  act  had  been  committed.  But  when  these  circum- 
stances are  wanting ;  when  there  has  been  no  previous  un- 
warrantable or  indecent  intimacy  between  the  parties,  no 
clandestine  correspondence,  or  stolen  and  secret  interviews, 
the  fact  of  opportunity  and  equivocal  appearances  would  hard- 
ly raise  a  passing  cloud  of  suspicion  over  the  fair  fame  of  such 
a  woman."  ^ 

While  it  is  clearly  not  possible  to  lay  down  beforehand  in  a 
formal  rule  what  circumstances  shall  and  what  shall  not  con- 
stitute satisfactory  proof  of  the  fact  of  adultery,  yet  the  courts 
will  not  infer  the  guilt  of  the  parties  from  the  opportunity 
alone.2  Proof  that  the  parties  were  together  in  a  place  and  at 
a  time  when  and  where  it  was  possible  for  them  to  have  been 
guilty  is  not  sufficient,  and  this  defect  of  proof  is  not  supplied 
by  proof  that  many  years  before  the  defendant  had  lived  in 
concubinage  with  another  man.^  There  must  be  evidence  not 
only  of  the  opportunity  to  commit  the  act,  but  also  of  the  will 
to  improve  the  opportunity.^  Where  both  the  opportunity  for 
the  act  and  the  will  to  commit  it  are  established  the  court  will 
infer  guilt.^ 

In  an  action  for  divorce  on  the  ground  of  adultery  it  ap- 
peared that  the  rooms  in  which  the  parties  were  shown  to  have 
been  together  were  the  place  of  business  of  the  plaintiff,  and 
people  went  in  and  out  there  frequently ;  but  there  was  no 
proof  of  a  kiss,  or  an  embrace,  or  a  contact,  a  nearness  of  per- 
son, or  an  endearment  of  any  kind,  or  of  a  surprise  in  an  equiv- 
ocal situation,  or  of  confusion  of  face  on  a  sudden  entrance,  or 
anything  clandestine  in  conduct,  or  which  showed  a  desire  foi» 
secrecy  or  concealment.  Having  reviewed  the  evidence  and 
pointed  out  the  absence  of  proof  of  the  existence  of  these  indi^ 
cations  of  guilt,  the  court  said :  "  It  is  contrary  to  the  usual 
experience  of  mankind,  not  only  as  gathered  in  one's  own  ob- 

1  Dunham  v.  Dunham,  6  L.  R.  141.     And  see  Blake  v.  Blake,  70  111.  618. 

2  Freeman  v.  Freeman,  31  Wis.  235. 

3  Larison  v.  Larison,  20  N.  J.  Eq.  100. 

*  Pollock  V.  Pollock,  71  N.  Y.  137.     See  Bishop  on  Marriage,  Divorce  and 
Separation,  §  1370. 
s  Berckmans  v.  Berckmans,  26  N.  J.  Eq.  122. 


DOCTRINE  AS  TO  PROOF  OF  CORPUS  DELICTI.  349 

servation,  but  as  disclosed  by  the  reports  of  such  cases,  that  if  the 
relations  existed  between  the  ])arties  as  charged  they  should  not, 
at  some  time  during  the  period,  have  incautiously  or  recklessly 
betrayed  the  fact  by  some  of  the  means  above  specified."  ^ 
Where  intimacy  between  the  parties  was  shown,  but  of  such  a 
nature  as,  in  their  relative  situations,  might  have  been  without 
criminality,  the  bill  was  dismissed.^  General  cohabitation — 
that  is,  in  the  sense  of  being  together  all  or  most  of  the  time 
in  the  same  household,  not  the  living  together  ostensibly  as 
husband  and  wife — apart  from  suspicious  circumstances  char- 
acterizing it,  is  not  enough  to  warrant  an  inference  of  the  fact 
of  adultery.^  In  connection  with  the  fact  of  general  cohabita- 
tion must  be  considered  the  condition  and  rank  in  life  of  the 
parties,  the  habits  and  conduct  of  themselves  and  their  equals 
in  society,  the  domestic  relations  which  each  of  them  maintain 
with  their  own  kin,  the  secluded,  or  open  and  avowed,  place  of 
cohabitation,  the  avocation  of  the  parties  and  what  demand  it 
makes  for  constant  or  frequent  intercourse,  and  all  other 
things  which  go  to  show  that  the  living  or  being  together  is  or 
is  not  necessary,  reasonable,  and  compatible  with  innocence.* 
When  the  relations  of  a  man  and  woman  are  illicit  in  their 
origin,  cohabitation  will  not  be  regarded  as  evidence  of  mar- 
riage.* 

Adultery  will  be  presumed  from  the  fact  that  the  man  and 
woman  occupy  one  bed  ;  ^  and  where  the  parties  occupy  the 
same  room,  in  which  is  only  one  bed,  for  several  months.'^  In 
one  case  the  following  circumstances,  taken  together,  were 
considered  as  pointing  to  the  conclusion  of  guilt :  that  the 
party  with  whom  it  was  charged  that  the  wife  had  committed 
the  act,  paid  her  frequent  visits  at  a  time  when  her  husband 
was  absent ;  that  the  parties  were  frequently  seen  together  in 
secret  and  notorious  localities  and  at  unusual  hours,  without 
its  being  shown  that  they  had  occasion  to  meet  for  any  honest 
or  innocent  purpose ;  ^  that  she  allowed  him  to  take  familiar- 
ities with  her  person  ;  and  that  the  respondent  furnished  the  wife 

1  Pollock  V.  Pollock,  supra.  2  Mayer  v.  Mayer,  21  N.  J.  Eq.  246. 

8  Hart  V.  Hart,  2  Edw.  Ch.  207.  *  Pollock  v.  Pollock,  su23ra. 

6  Crymble  i\  Crymble,  50  111.  App.  544. 

6  Clapp  V.  Clapp,  97  Mass.  531. 

'  Scroggins  v.  Scroggins,  Wright  (Ohio),  212. 

8  State  V,  Marion,  35  N.  H.  22. 


350  DOCTRINE  AS  TO  PROOF  OF  CORPUS  DELICTI. 

with  money  to  defend  the  suit.^  On  the  other  hand,  the  court 
thought,  that  the  fact  that  the  persons  were  together  in  lonely- 
places,  or  that  they  were  frequently  together  at  night  at  the 
house  of  the  defendant  when  her  husband  was  absent,  would 
not  of  itself  furnish  evidence  sufficient  to  justify  the  court  in 
declaring  that  they  had  committed  adultery.^  The  visit  of  a 
married  man  to  a  brothel  is  a  strong  circumstance  of  suspi- 
cion ;  ^  and  his  remaining  alone  in  a  room,  at  such  a  place,  for 
some  time,  with  a  common  prostitute,  has  been  held  sufficient 
proof  of  guilt.*  But  a  visit  of  this  sort,  as  has  been  pointed 
out  by  Mr.  Bishop,  might  be  one  of  philanthropy  or  of  lawful 
business,  and  is  therefore  open  to  explanation.^  A  defendant 
was  seen  to  enter  about  midnight  a  house  of  assignation,  and 
to  hold  in  his  embrace  one  of  the  inmates.  Shortly  after  all 
the  lights  of  the  house  were  extinguished,  and  the  defendant 
did  not  leave  the  house  till  nine  next  morning.  This  was  held 
ample.^ 

The  mere  fact  that  a  married  woman  visited  a  man  other 
than  her  husband  at  his  lodgings,  without  other  incriminating 
circumstances,  has  been  held  insufficient  to  convict  her  of 
adultery.  In  Williams  v,  Williams^  the  husband  had  for- 
bidden the  alleged  paramour,  Thomas,  to  come  any  more  to 
his  house.  Thomas  thereupon  took  lodgings,  where  the  wife 
visited  him,  staying  a  considerable  time,  and  they  passed  there 
for  husband  and  wife.  Lord  Stowell,  distinguishing  the  case 
from  another,  said :  "It  is  not  proved  nor  assumed  that  she 
took  the  name  of  Mrs.  Thomas.  He  caUed  her  so  and  said  that 
she  was  his  wife,  but  it  is  not  proved  that  she  called  him  her  hus- 
band, or  that  she  knew  that  he  called  her  his  wife ;  he  might 
speak  of  her  in  that  name,  but  that  will  not  show  her  knowl- 
edge of  the  fact.  The  only  circumstance  of  clandestinity 
which  is  proved  is  that  Thomas  attended  her  almost  to  her 
own  house,  and  then  left  her  ;  but  that  the  court  should  infer 
that  this  happened  from  a  clandestine  intention,  or  that  it 

1  Patterson  v.  Patterson  (N.  J.,  July,  1890),  20  Atl.  Rep.  347. 

2  Whitenack  v.  Whitenack,  46  N.  J.  Eq.  474. 

8  Astley  V.  Astley,  1  Hagg.  Ecc.  R.  730  ;    Kenrick  v.  Kenrick,  4  Id.  114. 
*  Astley  V.  Astley,  supra  ;  Dailey  v.  Dailey,  64  111.  339. 

5  2  Bish.  Mar.  &  Div.  §  626  ;  2  Greenl.  on  Ev.  (14th  Ed.)  §  44,  and  note 
a,  p.  38  ;  Latham  v.  Latham,  30  Grat.  (Va.)  307. 

6  Cooke  V.  Cooke,  153  111.  286. 

T  1  Hagg.  Con.  299 ;  4  Eng.  Ecc.  R.  415. 


DOCTRINE  AS  TO  PROOF  OF  CORPUS  DELICTI.  35I 

might  not  be  by  accident,  is,  I  think,  not  "\\'arranted  by  any 
rules  of  evidence  on  which  this  court  can  safely  proceed.  The 
question  then  comes  to  this  :  Does  the  visit  of  a  married  woman 
to  a  single  man's  lodging  or  house,  in  itself,  prove  the  act  of 
adultery  ?  There  is  no  authority  mentioned  for  such  an  infer- 
ence but  the  case  of  JEliot  v.  Eliot,  which  is  open  to  the  dis- 
tinction, arising  from  the  character  of  the  house  in  that  case, 
which  is  too  obvious  to  be  overlooked.  It  would  be  almost 
impossible  that  a  woman  could  go  to  such  a  place  but  for  a 
criminal  purpose ;  but  in  the  case  of  a  private  house,  I  am  yet 
to  learn  that  the  law  has  affixed  the  same  imputation  on  such 
a  fact.  In  the  late  case  of  Eicketts  v.  Taylor  in  the  King's 
Bench,  the  visit  of  the  Avife  to  a  single  man's  house,  combined 
with  other  circumstances,  was  held  sufficient.  In  that  case  the 
windows  were  shut,  and  there  were  letters  which  could  not  be 
otherwise  explained.  That  case,  therefore,  is  no  authority  in 
this  inquiry,  and,  though  the  court  might  be  induced  to  think 
that  such  visits  were  highly  improper,  it  must  recoUect  that 
more  is  necessary,  and  that  the  court  must  be  convinced  in  its 
legal  judgment  that  the  woman  has  transgressed  not  only  the 
bounds  of  delicacy  but  also  of  duty." 

But  in  a  late  case  the  proof  of  the  wife's  visits  was  accom- 
panied by  proof  of  other  circumstances  strong  enough  in  their 
incriminating  tendency  to  sustain  the  charge.  Her  visits  to- 
her  alleged  paramour  were  clandestine,  so  far  as  her  husband 
and  family  were  concerned  ;  she  visited  him  when  her  absence 
from  home  was  ostensibly  for  other  purposes  ;  and  although 
he  had  been  an  acquaintance  at  her  own  house,  she  never 
mentioned  the  fact  of  their  renewed  meetings  to  her  hus- 
band. She  passed  at  his  boarding  place  as  his  wife.  She  visited 
him  when  he  was  presumably  in  bed  ;  and  she  dressed  and  un- 
dressed in  the  room.  "  These  facts,"  said  the  learned  judge, 
"  taken  in  connection  with  what  has  been  pointed  out  as  to  her 
conduct  with  others,  leave  no  room  for  doubt  that  desire  and 
opportunity  met  on  the  occasion  of  these  visits  with  the  pre- 
sumable results."  ^ 

The  existence  of  the  criminal  fact  must  be  established  by 
clear  and  decisive  evidence. 

1  Graham  v.  Graham,  50  N.  J.  701.  See  an  article  by  the  author  on  evi- 
dence required  to  establish  adultery  in  39  Cent.  L.  J.  381.  Much  of  that 
article  is  reproduced  here  by  the  kind  permission  of  the  Central  Law  J.  Co. 


352  DOCTRINE  AS  TO  PROOF  OF  CORPUS  DELICTI. 

Such  a  complication  of  diiSculties  occasionally  attends  the 
proof  of  crime,  and  so  many  cases  have  occurred  of  convictions 
for  alleged  offences  which  have  never  existed,  that  it  is  a 
fundamental  and  inflexible  rule  of  legal  procedure,  of  universal 
obligation,  that  no  person  shall  be  required  to  answer,  or  be 
involved  in  the  consequences  of  guilt,  without  satisfactory  proof 
of  the  corpus  delicti,  either  by  direct  evidence,  or  by  cogent 
and  irresistible  grounds  of  presumption,  ^  "  The  rule  should  be 
adhered  to  with  the  utmost  and  strictest  tenacity,  that  the 
fact  forming  the  basis  of  the  offence  or  cot^ms  delicti  must  be 
proved  either  by  direct  testimony  or  by  presumptive  evidence 
of  the  most  cogent  or  irresistible  kind.  In  one  of  these 
methods  the  essential  fact  or  facts  must  be  established  beyond 
a  reasonable  doubt."  ^ 

The  corpus  delicti  of  the  making,  procuring,  etc.,  of  dyna- 
mite with  intent  to  use  the  same  for  the  unlawful  destruction 
of  the  lives  of  certain  persons,  is  sufficiently  proved  by 
evidence  of  the  fact  that  defendant  had  such  explosives  in  his 
possession  and  kept  them  concealed,  and  on  different  occasions 
threatened  to  take  the  lives  of  such  persons,  and  said  he  would 
throw  bombs  at  them  wherever  he  might  meet  them.^ 

On  a  trial  for  murder,  evidence  was  held  to  have  been  im- 
properly admitted,  as  to  its  order,  which  tended  to  show  im- 
proper relations  of  the  defendant  with  other  women,  and  uncon- 
nected with  the  illness  and  death  of  the  deceased.  The 
evidence  went  to  show  the  motive  of  the  accused,  and  should  not 
have  been  submitted  to  the  jury  until  the  criminal  death  was 
established.'* 

If  it  be  objected  that  rigorous  proof  of  the  corpus  delicti  is 
sometimes  unattainable,  and  that  the  effect  of  exacting  it 
must  be  that  crimes  will  occasionally  pass  unpunished,  it  must 
be  admitted  that  such  may  possibly  be  the  result ;  but  it  is 
answered  that,  where  there  is  no  proof,  or,  which  is  the  same 
thing,  no  sufficient  legal  proof  of  crime,  there  can  be  no  legal 
criminality.  In  penal  jurisdiction  there  can  be  no  middle 
term ;  the  party  must  be  absolutely  and  unconditionally  guilty 

1  Rex  V.  Burdett,  4  B.  &  Aid.  123. 

2  See  opinion  of  the  court  in  State  v.  Keeler,  28  la.  551.  See  also  Rex  v. 
Vend,  6  C.  &  P.  176  ;  Pitts  v.  State,  43  Miss.  472. 

8  Hornek  v.  People,  134  lU.  139  ;   8  L.  R.  A.  837. 

4  People  V.  Hall,  42  Mich.  485  ;  People  v.  Millard,  53  Mich.  67. 


DOCTRINE  AS  TO  PROOF  OF  CORPUS  DELICTI.  353 

or  not  guilty.  I^or  under  any  circumstances  can  considera- 
tions of  supposed  expediency  ever  supersede  the  immutable 
obligations  of  justice  ;  and  occasional  impunity  of  crime  is  an 
evil  of  far  less  magnitude  than  the  punishment  of  the  innocent. 
Such  considerations  of  mistaken  policy  led  some  of  the  writers 
on  the  civil  and  canon  laws  to  modify  their  rules  of  evidence, 
according  to  the  difficulties  of  proof  incidental  to  particular 
crimes,  and  to  adopt  the  execrable  maxim,  that  the  more  atro- 
cious was  the  offence,  the  slighter  was  the  proof  necessary ; 
in  atrocissionis  leviores  conjecturce  sufficiunt,  et  licet  judici  jura 
transgredi.  Such  indeed  is  the  logical  and  inevitable  conse- 
quence, when,  from  whatever  motive,  the  plea  of  expediency 
is  permitted  to  influence  judicial  integrity.  The  clearest  prin- 
ciples of  justice  require  that  whatever  the  nature  of  the  crime, 
the  amount  and  intensity  of  the  proof  shall  in  all  cases  be  such 
as  to  produce  the  full  assurance  of  moral  certainty. 
23 


CHAPTER  II. 

PROOF  OF  THE  CORPUS  DELICTI  BY  CIRCUMSTANTIAL 
EVIDENCE. 

Both  the  corpus  delicti  or  criminal  act,  and  the  agency  of 
the  accused  therein,  must  be  proved  beyond  a  reasonable  doubt, 
to  sustain  a  conviction.^ 

But  no  one  kind  of  evidence  can  always  be  demanded  in 
proof  of  the  corpus  delicti  any  more  than  of  any  other  fact.^ 

It  is  clearly  established  that  it  is  not  necessary  that  the 
corpus  delicti  should  be  proved  by  direct  and  positive  evidence, 
and  it  would  be  most  unreasonable  to  require  such  evidence. 

For  example,  on  a  prosecution  for  arson,  the  e\adence  tend- 
ing to  show  the  corpus  delicti,  so  as  to  lay  a  foundation  for 
any  legal  evidence  that  the  act  was  committed  by  the  accused 
and  with  a  criminal  intent,  need  not  be  direct  and  positive,  but 
may  be  circumstantial.^ 

If  the  jury  are  satisfied  of  the  essential  facts  beyond  a 
reasonable  doubt,  it  matters  not  whether  they  are  conducted 
to  this  result  by  direct  or  presumptive  evidence.*  The  rule 
that  the  corpus  delicti  must  be  proved  beyond  a  reasonable 
doubt  was  intended  as  a  shield  for  prisoners,  said  Chief  Justice 
Earl,  and  must  never  be  used  as  a  sword. ^  It  is  therefore 
settled  that  circumstantial  evidence  will  suffice  to  establish  the 
corpus  delicti  of  even  the  greatest  offences.^    Were  this  not  so, 

1  State  V.  Parsons,  39  W.  Va.  464. 

2  Willard  v.  State,  27  Tex.  Crim.  App.  386.  And  see  1  Bish,  Crim.  Proc. 
§  1071. 

3  Carlton  r.  People,  150.  lU.  181. 

4  State  V.  Keeler.  28  la.  551.  And  see  Brown  v.  State,  1  Tex.  Crim.  App. 
154  ;  State  v.  Winner,  17  Kan.  298  ;  Anderson  v.  State,  24  Fla.  139 ;  Johnson 
V.  Com.  (Ky.),  17  Cent.  L.  J,  428  ;  4Cr.  L.  Mag.  902 ;  State  v.  Dickson,  78 
Mo.  438  ;  Timmerman  v.  Terr.,  17  Pac.  624. 

^  People  V.  Schryver,  42  N.  Y.  1. 

6  state  V.  Hunter,  50  Kan.  30  2:  State  v.  Winner,  supra ;  State  v.  Ah  Chuey^ 
14  Nev.  79  ;  State  v.  CordeUi,  19  Nev.  319. 
354 


PROOF  BY  CIRCUMSTANTIAL  EVIDENCE.  355 

the  murderer  might  secure  himself  by  casting  the  body  into 
the  sea,  or  by  consuming  it  with  fire,  or  by  disposing  of  it 
in  such  a  way  that  it  could  not  be  identified.^ 

Crimes,  and  especially  those  of  the  worst  kinds,  are  natu- 
rally committed  at  chosen  times,  and  in  darkness  and  secrecy ; 
and  human  tribunals  must  act  upon  such  indications  as  the  cir- 
cumstances of  the  case  present  or  admit,  or  society  must  be 
broken  up.  Nor  is  it  very  often  that  adequate  evidence  is  not 
afforded  by  the  attendant  and  surrounding  facts,  to  remove 
all  mystery,  and  to  afford  such  a  reasonable  degree  of  certainty 
as  men  are  daily  accustomed  to  regard  as  sufficient  in  the  most 
important  concerns  of  life  :  to  expect  more  would  be  equally 
needless  and  absurd.  In  JBurdetfs  case  ^  this  subject  under- 
went much  discussion,  and  was  elaborately  treated  by  the 
bench.  Mr.  Justice  Best  said  :  "  When  one  or  more  things  are 
proved  from  which  experience  enables  us  to  ascertain  that 
another,  not  proved,  must  have  happened,  we  presume  that  it 
did  happen,  as  well  in  criminal  as  in  civil  cases.  Nor  is  it 
necessary  that  the  fact  not  proved  should  be  established  by 
irrefragable  inference.  It  is  enough  if  its  existence  is  highly 
probable,  particularly  if  the  opposite  party  has  it  in  his  power 
to  rebut  it  by  evidence,  and  yet  offers  none ;  for  then  we  have 
something  like  an  admission  that  the  presumption  is  just.  It 
has  been  solemnly  decided,  that  there  is  no  difference  between 
the  rules  of  evidence  in  civil  and  criminal  cases.  If  the  rules  of 
evidence  prescribe  the  best  course  to  get  at  the  truth,  they 
must  be  and  are  the  same  in  all  cases  and  in  all  civilized  coun- 
tries. There  is  scarcely  a  criminal  case,  from  the  highest  down 
to  the  lowest,  in  which  courts  of  justice  do  not  act  upon  this 
princijile."  His  lordship  added :  "  It  therefore  appears  to  me 
quite  absurd  to  state  that  we  are  not  to  act  upon  presumption. 
Until  it  pleases  Providence  to  give  us  means  beyond  those 
our  present  faculties  afford  of  knowing  things  done  in  secret, 
we  must  act  on  presumptive  truth,  or  leave  the  worst  crimes 
unpunished.  I  admit,  where  presumption  is  intended  to  be 
raised  as  to  the  corpus  delicti^  that  it  ought  to  be  strong  and 
cogent."  Mr.  Justice  Holroyd  said  :  "  No  man  is  to  be  con- 
victed of  any  crime  upon  mere  naked  presumption.  A  light 
or  rash  presumption,  not  arising  either  necessarily,  probably, 

1  Smith  V.  Com.,  21  Grat.  (Va.)  809.  2  4  B.  &  Aid.  95. 


356  PROOF  OF  THE  CORPUS  DELICTI 

or  reasonably,  from  the  facts  proved,  cannot  avail  in  law.  But 
crimes  of  the  highest  nature,  more  especially  cases  of  murder, 
are  established,  and  convictions  and  executions  thereupon 
frequently  take  place  for  guilt  most  convincingly  and  con- 
clusively proved,  upon  presumptive  evidence  only  of  the  guilt 
of  the  party  accused  ;  and  the  well-being  and  security  of 
society  much  depend  upon  the  receiving  and  giving  due  eifect 
to  such  proof.  The  presumptions  arising  from  those  proofs 
should,  no  doubt,  and  most  especially  in  cases  of  great  magni- 
tude, be  duly  and  correctly  weighed.  They  stand  only  as 
proofs  of  the  facts  presumed  till  the  contrary  be  proved,  and 
those  presumptions  are  either  weaker  or  stronger,  according 
as  the  party  has,  or  is  reasonably  to  be  supposed  to  have,  it  in 
his  power  to  produce  other  evidence  to  rebut  or  to  weaken 
them,  in  case  the  fact  so  presumed  be  not  true,  and  according 
as  he  does  or  does  not  produce  such  contrary  evidence."  Mr. 
Justice  Bayley  said :  "  JSTo  one  can  doubt  that  presumptions 
may  be  made  in  criminal  as  well  as  in  civil  cases.  It  is  con- 
stantly the  practice  to  act  upon  them,  and  I  apprehend  that 
more  than  one-half  of  the  persons  convicted  of  crimes  are  con- 
victed on  presumptive  evidence.  If  a  theft  has  been  com- 
mitted, and  shortly  afterwards  the  property  is  found  in  the 
possession  of  a  person  who  can  give  no  account  of  it,  it  is  pre- 
sumed that  he  is  the  thief,  and  so  in  other  criminal  cases ;  but 
the  question  always  is,  whether  there  are  sufficient  premises  to 
warrant  the  conclusion."  Lord  Chief  Justice  Abbott  said  : 
"  A  fact  must  not  be  inferred  without  premises  which  will  war- 
rant the  inference  ;  but  if  no  fact  could  be  thus  ascertained  by 
inference  in  a  court  of  law,  very  few  offences  would  be  brought 
to  punishment.  In  a  great  proportion  of  trials,  as  they  occur 
in  practice,  no  direct  proof  that  the  party  accused  actually 
committed  the  crime  is  or  can  be  given ;  the  man  who  is 
charged  with  theft  is  rarely  seen  to  break  the  house  or  take 
the  goods ;  and  in  cases  of  murder,  it  rarely  happens  that  the 
eye  of  any  witness  sees  the  fatal  blow  struck,  or  the  poisonous 
ingredient  poured  into  the  cup."  The  law  on  this  point  was 
also  very  emphatically  declared  by  Mr.  Baron  Parke  in 
TaweWs  case.  His  lordship  said  :  "  The  jury  had  been  prop- 
erly told  by  the  counsel  for  the  prosecution  that  circumstantial 
evidence  is  the  only  evidence  which  can  in  cases  of  this  kind 
lead  to  discovery.     There  is  no  way  of  investigating  them  ex- 


BY  CIRCUMSTANTIAL  EVIDENCE.  357 

cept  by  the  use  of  circumstantial  evidence  ;  but  Providence  has 
so  ordered  the  affairs  of  men  that  it  most  frequently  happens 
that  great  crimes  committed  in  secret  leave  behind  them  some 
traces,  or  are  accompanied  by  some  circumstances  which  lead 
to  the  discovery  and  punishment  of  the  offender ;  ^  therefore, 
the  law  has  wisely  provided  that  you  need  not  have,  in  cases 
of  this  kind,  direct  proof,  that  is,  the  proof  of  eye-witnesses, 
who  see  the  fact  and  can  depose  to  it  upon  their  oaths.^  It  is 
impossible,  however,  not  to  say  that  is  the  best  proof,  if  that 
proof  is  offered  to  you  upon  the  testimony  of  men  whose 
veracity  you  have  no  reason  to  doubt ;  but  on  the  other  hand 
it  is  equally  true  with  regard  to  circumstantial  evidence,  that 
the  circumstances  may  often  be  so  clearly  proved,  so  closely 
connected  with  it,  or  leading  to  one  result  in  conclusion,  that 
the  mind  may  be  as  well  convinced  as  if  it  were  proved  by  eye- 
witnesses. This  being  a  case  of  circumstantial  evidence;  I  ad- 
vise you,"  said  the  learned  judge,  "  as  I  invariably  advise  juries, 
to  act  upon  a  rule  that  you  are  first  to  consider  what  facts  are 
clearly,  distinctly,  indisputably  proved  to  your  satisfaction ; 
and  you  are  to  consider  whether  those  facts  are  consistent  with 
any  other  rational  supposition  than  that  the  prisoner  is  guilty 
of  that  offence.  If  you  think  that  the  facts  in  this  case  are  aU 
consistent  with  the  supposition  that  the  prisoner  is  guilt}^,  and 
can  offer  no  resistance  to  that,  except  the  character  the  pris- 
oner has  borne,  and  except  the  supposition  that  no  man  would 
be  guilty  of  so  atrocious  a  crime  as  that  laid  to  the  charge  of 
the  prisoner,  that  cannot  much  influence  your  minds ;  for  we 
aU  know  that  crimes  are  committed,  and,  therefore,  the  exist- 
ence  of  the  crime  is  no  inconsistency  with  the  other  circum- 
stances, if  those  circumstances  lead  to  that  result.  The  point 
for  you  to  consider  is,  whether,  attending  to  the  evidence,  you 
can  reconcile  the  circumstances  adduced  in  evidence  with  any 
other  supposition  than  that  he  has  been  guilty  of  the  offence. 
If  you  cannot,  it  is  your  bounden  duty  to  find  him  guilty  ;  if 
you  can,  then  you  will  give  him  the  benefit  of  such  supposition. 

^  "  Ces  circonstances  sont  autant  de  temoins  niuets,  que  la  Providence 
semble  avoir  places  autour  du  crime,  pour  faire  jaillir  la  lumiere  de  Tombre 
dans  laquelle  I'agent  s'est  efforce  d'ensevelir  le  fait  principal ;  elles  sont 
comme  un  fanal  qvii  eclaire  I'esprit  du  juge,  et  le  dirige  vers  des  traces 
certaines  qu'il  suffit  de  suivre  pour  atteindre  a  la  verite." — Mittermaier, 
ut  supra,  ch.  53. 

2  3  Greenl.  on  Ev.  §  30. 


358 


PROOF  OF  THE  CORPUS  DELICTI 


All  that  can  be  required  is,  not  absolute,  positive  proof,  but 
such  proof  as  convinces  you  that  the  crime  has  been  made  out."  ^ 

The  same  general  principle  prevails  with  regard  to  the  proof 
of  crimes  of  every  description,  and  of  every  element  of  the 
corpus  delicti.  Thus,  on  the  trial  of  a  man  for  stealing  pepper, 
it  appeared  that  on  the  first  floor  of  a  warehouse  a  large 
quantity  of  pepper  was  kept  in  bulk,  and  that  the  prisoner  was 
met  coming  out  of  the  lower  room  of  the  warehouse  where  he 
had  no  business  to  be,  having  on  him  a  quantity  of  pepper  of 
the  same  description  with  that  in  the  room  above.  On  being 
stopped  he  threw  down  the  pepper,  and  said,  "  I  hope  you  will 
not  be  hard  with  me."  From  the  large  quantity  in  the  ware- 
house it  could  not  be  proved  that  any  pepper  had  been  taken 
from  the  bulk.  It  was  urged  on  behalf  of  the  prisoner  that 
there  must  be  direct  and  positive  evidence  of  a  corjnis  delicti, 
and  that  presumptive  evidence  was  insufficient  for  that  pur- 
pose ;  but  the  Court  of  Criminal  Appeal  held  tliat  the  prisoner 
had  been  rightly  convicted.^  Mr.  Justice  Maule  said  that  the 
offence  with  which  the  prisoner  is  charged  must  be  proved, 
and  that  involves  the  necessity  of  proving  that  the  prosecutor's 
goods  have  been  taken.  But  why,  continued  the  learned  judge, 
is  that  to  be  differently  proved  from  the  rest  of  the  case  ?  If 
the  circumstances  satisfy  the  jury,  what  rule  is  there  which 
renders  some  more  positive  and  direct  proof  necessary  ?  And 
he  mentioned  the  case  of  a  father  and  two  sons,  who  were  con- 
victed of  stealing  from  their  employers  a  quantity  of  shoes  and 
materials  for  making  shoes,  though  the  prosecutors  said  their 
stock  was  so  large  that  they  could  not  say  they  had  missed 
any  one  of  the  articles  alleged  to  have  been  stolen. 

In  Reg  v.  Mockford^  Cockburn,  C.  J.,  said :  "  Suppose  a 
man  is  seen  going  away  with  a  sack  of  corn  from  a  barn  where 
a  quantity  of  corn  is  stored,  and  that  he  can  give  no  account 
of  it,  and  that  the  prosecutor  cannot  swear  that  he  has  lost  a 
sack  of  corn,  but  only  that  he  had  a  large  quantity  in  the  barn 
like  that  in  the  sack,  can  it  be  said  there  is  no  evidence  of  the 
sack  of  corn  having  been  taken  from  the  barn  'V  In  this  case 
the  prisoner  was  tried  for  the  theft  of  some  fowls  for  his  pos- 

1  Reg.  V.  Tawell,  Aylesbury  Spr.  Ass.,  1845. 

2  Reg.  V.  Burton,  23  L.  J.  N.  S.  M.  C.  52.  And  see  Reg.  v.  Dredge,  1  Cox, 
235  ;  and  ante,  108. 

3  11  Cox  C.  C.  16. 


BY  CIRCUMSTANTIAL  EVIDENCE.  359 

session  of  which  he  gave  no  explanation.  The  prosecutor 
could  not  swear  that  he  had  lost  any  fowls.  The  prisoner  Avas 
stopped  by  a  constable  about  one  o'clock  in  the  morning,  and 
threw  down  the  fowls  which  he  was  carrying,  bleeding 
and  still  warm,  and  ran  towards  his  own  house.  He  was 
tracked  through  freshly  fallen  snow  to  the  prosecutor's  foAvl- 
house,  where,  on  the  floor,  were  found  feathers  corresponding 
to  the  feathers  of  one  of  the  fowls  which  the  prisoner  had 
thrown  away,  from  the  neck  of  which  feathers  had  been  re- 
moved. The  accused  wore  cord  trousers  on  the  knees  of  which 
was  the  wet  dung  of  fowls.  In  the  fowl-house  were  found,  on 
the  floor  under  the  roosts,  marks  as  if  one  wearing  cord 
trousers  had  knelt  there.  The  jury  returned  a  verdict  of 
guilty  and  the  conviction  was  affirmed.  Where  a  drayman 
was  charged  with  the  larceny  of  190  pounds  of  coal,  it  ap- 
peared that  in  the  discharge  of  his  duty  he  was  to  deliver  a 
ton  of  coal  to  a  customer  ;  that  he  delivered  a  ton  of  coal  at 
one  o'clock  of  the  day  in  question,  but  that  half  an  hour  before 
he  had  sold  190  pounds  of  the  same  kind  of  coal  to  a  witness. 
There  was  no  evidence  of  the  quantity  of  coal  delivered  at  the 
customer's,  nor  of  any  coal  being  missed.  The  evidence  was 
submitted  to  the  jury  and  a  verdict  of  "  not  guilty  "  was  re- 
turned.i  Where  the  prisoner,  a  booking-clerk  for  a  steamship 
company,  was  indicted  for  having  embezzled  money  of  his  em- 
ployer's received  from  the  sale  of  tickets,  there  was  evidence 
that  all  of  the  tickets  had  passed  into  the  prisoner's  pos- 
session, and  that  they  had  passed  out  of  his  possession,  but 
whether  for  money  or  not  was  unknown.  There  was  also 
evidence  that  some  of  them  had  not  been  issued  against  war- 
rants. In  order  to  find  the  prisoner  guilty  it  was  necessary  to 
prove  that  he  had  received  money  in  behalf  of  his  masters  and 
that  he  had  misappropriated  it.  "  It  is  said,"  remarked  Lord 
Coleridge,  C.  J.,  "  that  there  was  no  such  evidence ;  but  it  was 
conceded  that  if  there  was  any  evidence  at  all,  it  must  have 
gone  to  the  jury.  Kow  how  can  it  be  said  there  was  no  evi- 
dence ?  That  there  was  a  receipt  of  money  by  the  prisoner,  it 
was  said,  is  merely  a  presumption.  It  is  difficult  to  conceive  a 
case  in  which  there  can  be  only  ocular  demonstration  ;  and  if 
the  contention  on  behalf  of  the  prisoner  were  right,  it  would 

1  Reg.  V.  Hooper,  1  F.  &  F.  85. 


360  PROOF  OF  THE  CORPUS  DELICTI 

always  be  possible,  whenever  ocular  demonstration  was  want- 
ing, to  say  that  the  inference  the  jury  drew  might  have  been 
wrong,  and  that  if  it  was  wrong,  there  was  therefore  no  proof  of 
the  offence.  But  that  is  a  fallac}'^,  for  it  is  for  the  jury  to  con- 
sider whether  the  inference  they  draw  is  correct  or  not.  There 
are  no  facts  here  to  show  or  raise  an  inference  that  money 
never  passed  into  the  prisoner's  possession ;  and  on  the  other 
hand,  there  are  facts  from  which  reasonable  men  might  draw 
the  presumption  that  money  did  pass.  And  the  jury  drew 
that  presumption  ;  and  to  say  that  it  is  mere  presumption  un 
supported  by  evidence  is  a  fallacy.  The  passage  which  was  cited 
from  Lord  Stowell  is  extremely  valuable  as  a  piece  of  legal 
literature ;  but  when  it  is  cited  in  order  to  show  that  a  clerk 
did  not  receive  money  for  tickets  he  was  bound  to  sell,  is  to 
mistake  its  application."  ^ 

On  the  trial  of  an  indictment  for  the  larceny  of  a  calf,  it  ap- 
peared that  the  defendant,  after  killing  a  calf,  had  cut  out  the 
brand,  and  cut  off  the  ears,  and  had  burned  the  ears  and  the 
part  of  the  hide  so  cut  out.  The  supposed  owner  of  the 
animal  could  not  testify  that  he  had  lost  a  calf.  But  the  evi- 
dence was  allowed  to  go  to  the  jury  for  the  purpose  of  deter- 
mining "  whether  such  calf  was  in  fact  stolen,  and  that  the 
defendant  was  the  thief."  ^ 

Where  one  was  tried  for  the  larceny  of  a  sum  of  money,  the 
only  evidence  in  the  case  showed  that  the  defendant  was  found 
in  possession  of  money  ;  that  he  had  opportunity  to  steal  it ; 
that  he  was  immediately  afterward  accused  of  the  larceny,  upon 
which  he  made  false  statements  as  to  the  manner  in  which  the 
money  was  obtained ;  that  when  accused  of  the  theft  he 
claimed  the  money  as  his  own,  while  on  the  trial  he  pretended 
that  it  had  been  confided  to  him  for  safe-keeping  by  the  party 
who  had  lost  it,  a  pretence  inconsistent  with  the  conduct  of 

1  Reg.  V.  Stephens,  16  Cox  C.  C.  387.  The  passage  from  Lord  Stowell, 
referred  to  by  the  Lord  Chief  Justice,  is  from  Evans  v.  Evans,  1  Hagg. 
Con.  105:  "  When  a  criminal  fact  is  ascertained  presumptive  proof  may 
be  taken  to  show  who  did  it — to  fix  the  criminal,  having  there  an  actual 
corpus  delicti ;  but  to  take  presumptive  in  order  to  swell  an  equivocal  and 
ambiguous  fact  into  a  criminal  fact  would,  I  take  it,  be  an  entire  misap- 
prehension of  the  doctrine  of  presumption."  See  also  State  v.  Cordelli, 
19  Nev.  319,  where  it  is  said  that  language  of  this  sort  might  apply  where 
the  proof  of  the  crime  is  separable  from  the  proofs  which  furnish  a  clew 
to  the  perpetrator  thereof.  ^  State  t'.  Loveless,  17  Nev.  424. 


BY  CIRCUMSTANTIAL  EVIDENCE.  QQi 

the  parties  on  the  day  of  the  theft ;  that  the  defendant  was 
seen  to  make  motions  as  if  attempting  to  pick  the  pocket  of 
the  one  who  subsequently  lost  the  money.  This  was  held  suf- 
ficient to  prove  the  corpus  delicti,  and  to  justify  a  verdict  of 
guilty.i 

But  it  is  not  necessary  that  every  individual  fact  should  be 
indisputably  proved.  On  a  trial  for  forgery,  in  Scotland,  Lord 
Meadowbank  said  :  "  I  must  tell  you  that  the  learned  counsel 
for  the  panel  stated  the  law  incorrectly  when  he  said  that  you 
must  have  decisive,  irrefragable,  and  conclusive  proof  of  every 
point  in  a  case  like  the  present,  before  finding  the  instrument 
to  be  forged.  The  law  is  quite  the  reverse.  You  are  to 
take  all  the  evidence  together,  and  you  are  bound  to  consider 
whether  it  amounts  and  comes  up  to  affording  a  moral  con- 
viction in  your  minds  equivalent  to  the  positive  and  direct 
proof  of  a  fact."  ^  Each  particular  circumstance  need  not  be 
so  established  as  to  positively  exclude  all  uncertainty  or  doubt ; 
but  all  combined  must  produce  that  degree  of  certainty.^ 

1  People  V.  Walker,  38  Mich.  156. 

2  Reg.  V.  Humphreys,  supra. 

«  State  V.  Davidson,  30  Vt.  377. 


DIVISION  XL 

APPLICATION  OF  THE  GENERAL  PRINCIPLE   TO   PROOF 
OF  THE  CORPUS  DELICTI   IN   CASES   OF   HOMICIDE. 


CHAPTER  I. 


THE  DISCOVERY   OF  THE   BODY. 

The  general  principles  of  evidence  under  discussion  are  so 
supremely  important  in  reference  to  cases  of  homicide,  that 
it  will  be  expedient  to  illustrate  the  application  of  them  at 
some  length. 

The  corj)U8  delicti  in  murder  is  a  compound  fact  made  up  of 
death  as  the  result,  and  the  criminal  agency  of  another  person 
as  the  means.^  The  former  constitutes  the  basis  of  the  latter 
inquiry  and  in  general  ought  to  be  proved  first.^ 

The  discovery  of  the  body  necessarily  affords  the  best  evi- 
dence of  the  fact  of  death,  and  of  the  identity  of  the  individual, 
and  most  frequently  also  of  the  cause  of  death.^  A  conviction 
for  murder  is  therefore  never  allowed  to  take  place,  unless  the 
body  has  been  found,  or  there  is  equivalent  proof  of  death  by 
circumstantial  evidence  leading  directly  to  that  result,*  and 
many  cases  have  shown  the  danger  of  a  contrary  practice. 
Three  persons  were  executed,  in  the  year  1660,  for  the  murder 
of  a  person  who  had  suddenly  disappeared,^  but  about  two 

1  Ruloff  V.  People,  18  N.  Y.  179 ;  People  v.  Bennett,  49  N.  Y.  137  ;  Pitts 
V.  State,  43  Miss.  472 ;  Lovelady  v.  State,  14  Tex.  Crim.  App.  545  ;  Smith  v. 
Com.,  21  Grat.  (Va.)  809  ;  Thomas  v.  State,  67  Ga.  460. 

2  U.  S.  V.  Williams,  1  Cliff.  15. 

3  Mittermaier,  ut  supra,  ch.  24.     See  Thomas  v.  State,  67  Ga.  46i- 

*  Per  Mr.  Baron  Parke,  in  Reg.  v.  Tawell,  ut  supra.  Au/^.  see  SuaV*  v. 
Miller,  9  Houst.  564. 

6  Rex  V.  Perrys,  14  St.  Tr.  1312  ;  and  see  11  St.  Tr.  463  ;  sea  Iso  the  Scotch 
case  of  Green  and  others,  14  St.  Tr.  1197,  where,  in  1705,  i,he  captain  of  a 
362 


THE  DISCOVERY  OF  THE  BODY.  363 

years  afterwards  he  reappeared.  It  appeared  that  he  had 
been  out  to  collect  his  mistress's  rents,  and  had  been  robbed 
by  highwaymen,  who  put  him  on  board  a  ship  which  was 
captured  by  Turkish  pirates,  by  whom  he  was  sold  into  slavery. 
Sir  Matthew  Hale  mentioned  a  case  where  A.  was  long  miss- 
ing, and  u^Jon  strong  presumptions  B.  was  supposed  to  have 
murdered  him,  and  to  have  consumed  the  body  to  ashes  in  an 
oven,  whereupon  B.  was  indicted  for  murder,  and  convicted, 
and  executed,  and  within  one  year  afterwards  A.  returned, 
having  been  sent  beyond  sea  by  B.  against  his  will ;  "  and  so," 
that  learned  writer  adds,  "  though  B.  justly  deserved  death, 
yet  he  Avas  really  not  guilty  of  that  offence  for  which  he 
suffered."  ^  Sir  Edward  Coke  also  gives  the  case  of  a  man 
who  was  executed  for  the  murder  of  his  niece,  who  was  after- 
wards found  to  be  living,  of  which  the  particulars  have  been 
given  in  a  former  part  of  this  Essay  .^  Sir  Matthew  Hale,  on 
account  of  these  cases,  says,  "  I  wiU  never  convict  any  person 
of  murder  or  manslaughter,  unless  the  facts  were  proved  to  be 
done,  or  at  least  the  body  found."  ^  The  judicial  history  of 
all  nations,  in  all  times,  abounds  with  similar  warnings  and 
exemplifications  of  the  danger  of  neglecting  these  salutary 
cautions.* 

In  Texas,  by  a  provision  of  the  Penal  Code,^  no  person  can 
be  convicted  of  homicide  unless  the  body  of  the  deceased  or 
portions  of  it  are  found  and  sufficiently  identified  to  establish 
the  fact  of  the  death  of  the  person  charged  to  have  been  killed. 
And  in  justification  of  this  it  is  said  that  the  occasional  escape 
from  punishment  of  a  guilty  party  is  preferable  to  the  con- 
viction of  the  innocent.® 

In  a  famous  case  in  New  York,'^  where  the  prisoner  was  in- 
dicted for  the  murder  of  his  infant  daughter,  at  the  opening  of 
the   trial  the  counsel  for   the   prosecution,  in   answer   to    a 

vessel  and  several  of  his  crew  were  executed  on  a  charge  of  piracy  and 
murder  ;  but  the  party  supposed  to  have  been  murdered  reappeared  many 
years  afterwards,  having  been  taken  at  sea  and  carried  into  captivity. 

1  2  Hale's  P.  C.  c.  39. 

2  See  ante  ;  and  for  other  cases  of  the  same  kind,  see  Green's  Case,  14  St. 
Tr.  1311. 

3  2  P.  C.  c.  39. 

*  See  the  case  of  the  two  Booms,  1  Greenleaf's  L.  of  Ev.  §  214,  and  ante, 
6  Art.  549.  ^  Puryea  v.  State,  28  Tex.  Cr.  App.  73 

1  Rvdoflf  V.  People,  18  N.  Y.  179. 


364  THE  DISCOVERY  OF  THE  BODY. 

question  by  the  prisoner's  counsel,  said  that  he  did  not  pro- 
pose to  prove  by  any  direct  evidence  that  the  child  was  dead, 
or  had  been  murdered,  or  that  her  dead  body  had  ever  been 
found,  but  that  he  should  ask  the  jury  to  infer  from  the  lapse 
of  time  since  the  child  and  mother  were  last  seen,  and  from 
other  facts  and  circumstances,  that  the  child  was  dead,  and 
that  she  had  been  murdered  by  the  prisoner.  The  prisoner's 
counsel  thereupon  moved  that  the  trial  be  stopped  for  want  of 
proof  of  the  corpus  delicti^  insisting  on  the  rule  laid  down  by 
Lord  Hale.  The  judge  reserved  the  question  till  the  evidence 
should  be  closed. 

The  proof  offered  by  the  prosecution  tended  to  show  that 
the  prisoner  did  not  live  happily  with  his  wife,  and  that  on 
the  evening  of  June  24,  1845,  the  wife  and  child  were  seen 
alive.  But  it  was  not  shown  that  either  were  ever  seen  there- 
after. The  next  day  the  accused  borrowed  a  wagon,  took  into 
it  a  box  from  his  own  house,  and  drove  off  with  it.  On  the 
following  day  he  returned  with  the  w^agon  and  box.  It  was 
shown  that  he  had  in  his  possession  a  ring  which  his  wife  had 
worn  on  the  day  when  she  was  last  seen,  and  a  shawl  and 
other  articles  of  her  apparel ;  that  he  told  stories  as  to  her 
being  at  sundry  places  where  she  was  proved  not  to  have  been, 
and  generally  conducted  himself  in  such  a  way  as  to  lead 
strongly  to  the  inference  that  he  was  the  author  of  whatever 
had  happened  to  his  wife  and  child,  if  anything  had,  in  fact, 
happened  to  them.  In  the  house  clothes  Avere  found  lying 
about  in  disorder ;  and  dishes  were  unwashed.  A  cast-iron 
mortar  and  flat-irons  which  were  known  to  have  been  in  the 
prisoner's  possession  were  not  to  be  found.  About  a  month 
after  the  disappearance  of  his  wife  and  child,  the  prisoner 
went  to  a  distant  city,  where  he  lived  under  a  false  name,  and 
where  he  said  that  his  wife  and  child  had  died  six  weeks  before 
in  Illinois.  He  left  there  a  box  of  books,  papers,  and  articles  of 
woman's  apparel  which  had  belonged  to  his  wife,  and  a  scrap 
of  paper  on  which  were  the  words,  "  Oh,  that  dreadful 
hour !  " 

At  the  close  of  the  evidence  counsel  for  the  prisoner  re- 
newed his  motion  and  asked  that  the  jury  be  instructed  that 
no  conviction  could  be  had.  The  judge  refused  so  to  instruct, 
and  the  case  was  taken  up  on  a  writ  of  error.  It  was  held 
that  an  acquittal  should  have  been    directed.  Chief  Justice 


THE  DISCOVERY  OF  THE  BODY.  365 

Johnston,  who  delivered  the  opinion  of  the  court,  saying  :  "  I 
have  not  found  any  case  in  which  a  judge,  speaking  directly 
to  the  point  here  involved,  has  said  that  without  direct 
evidence  in  either  branch  of  the  corpus  deUcti  a  conviction  for 
murder  could  be  allowed."  It  was  said  in  a  later  case^  that 
all  that  was  decided  in  this  case  was  that  one  or  the  other  of 
the  component  parts  of  the  coi'pus  delicti  must  be  proved  by 
direct  evidence.  And  this  is  the  law  of  Xew  York  ;  ^  for  by 
the  Code  of  Criminal  Procedure^  of  that  State  "  no  person  can  be 
CH^n^4cted  of  murder  or  manslaughter  unless  the  death  of  the 
person  alleged  to  have  been  killed,  and  the  fact  of  killing  by 
the  defendant,  as  alleged,  are  each  established  as  independent 
facts,  the  former  by  direct  proof,  and  the  latter  beyond  a 
reasonable  doubt." 

But  with  regard  to  the  statement  of  Sir  Matthew  Hale 
quoted  on  a  previous  page,  Fitzgerald,  J.,  said  that  the  "  rule, 
v\'hich  is  one  rather  of  judicial  practice  than  part  of  the  law  of 
evidence,  seems  to  have  had  its  origin  in  cases  where  the 
charge  of  murder  depended  on  the  fact  of  the  disappearance 
of  the  party  alleged  to  have  been  murdered.^  And  it  is  evi- 
dent that  to  require  the  discover}^  of  the  body  in  all  cases 
would  be  unreasonable  and  lead  to  absurdity  and  injustice,  and 
it  is  indeed  frequently  rendered  impossible  by  the  act  of  the 
offender  himself.  It  is  said  that  on  the  trial  for  murder  of  the 
mother  and  reputed  father  of  a  bastard  child,  whom  they  had 
stripped  and  thrown  into  the  dock  of  a  seaport  town,  after 
which  it  was  never  seen  again,  Mr.  Justice  Gould  adWsed  an 
acquittal  on  the  ground  that  as  the  tide  of  the  sea  flowed  and 
reflowed  into  and  out  of  the  dock  it  might  possibly  have  car- 
ried out  the  living  infant.^  Mr.  Justice  Story  said  of  the  propo- 
sition in  question  that  "  it  certainly  cannot  be  admitted  as  cor- 
rect in  point  of  common  reason  or  of  law,  unless  courts  of  jus- 
tice are  to  establish  a  positive  rule  to  screen  persons  from  punish- 
ment who  may  be  guilty  of  the  most  flagitious  ofi'ences.  In  the 
cases  of  murder  committed  on  the  high  seas  the  body  is  rarely 
if  ever  found,  and  a  more  complete  encouragement  and  protec- 
tion to  the  worst  offences  of  this  sort  could  not  be  invented 

^  People  V.  Bennett,  supra.  2  People  v.  Palmer,  109  N.  Y.  110. 

8  §  181.     And  see  People  v.  Beckwith,  108  N.  Y.  67. 

♦  Reg.  V.  Unkles,  8  Ir.  L.  T.  R.  38. 

^  Per  Garrow  arguendo  in  Hindmarsh's  Case,  2  Leach's  C.  C.  371. 


366 


THE  DISCOVERY  OF  THE  BODY. 


than  a  rule  of  this  strictness.  It  would  amount  to  a  universal 
condonation  of  all  murders  committed  on  the  high  seas."  ^  In 
the  case  of  United  States  v.  Williams^  the  defendants  were 
indicted  for  murder  on  the  high  seas.  The  prisoners  and  the 
men  supposed  to  have  been  murdered  made  up  the  crew  of  a 
vessel  which  sailed  from  Portland  about  the  middle  of  the 
year  1857.  Neither  the  vessel  nor  the  murdered  men  were 
ever  afterward  heard  from,  except  through  the  confessions  of 
the  prisoners  and  L.,  who  died  before  the  trial.  About  the 
time  when  the  vessel  should  have  reached  its  destination  the 
prisoners  were  picked  up  in  a  boat  in  the  open  sea,  which  boat 
was  subsequently  brought  home  and  identified  as  the  only  boat 
of  the  vessel  in  which  they  sailed.  It  was  tarred  inside  in 
a  manner  to  indicate  that  they  had  not  left  the  vessel 
without  preparation,  and  that  fact  was  still  more  strongly 
indicated  by  the  circumstance  that  they  had  in  the  boat  the 
ship's  compass  and  a  supply  of  water  and  provisions.  They 
had  also  in  their  possession  the  watch  of  the  captain  and  the 
clothing  of  the  murdered  men,  and  the  ship's  register,  and  all 
these  articles  were  fully  identified  at  the  trial.  After  they 
were  picked  up  they  gave  contradictory  and  false  accounts  of 
what  had  occurred  before  they  left  the  vessel,  and  persisted  in 
falsehood  until  L.  disclosed  the  truth ;  and  then  they  freely 
confessed  their  crimes. 

It  may  be  said  to  be  now  clearly  established  that  the  fact  of 
death  may  be  legally  inferred  from  such  strong  and  unequivo- 
cal circumstances  of  presumption  as  render  it  morally  certain, 
and  leave  no  ground  for  reasonable  doubt ;  as  where,  on  the 
trial  of  a  mariner  for  the  murder  of  his  captain  at  sea,  a  wit- 
ness stated  that  the  prisoner  had  proposed  to  kill  him,  and 
that,  being  alarmed  in  the  night  by  a  violent  noise,  he  went 
upon  deck  and  saw  the  prisoner  throw  the  captain  overboard, 
and  that  he  was  not  seen  or  heard  of  afterwards,  and  that  near 
the  place  on  the  deck  where  the  captain  was,  a  billet  of  wood 
was  found,  and  that  the  deck  and  part  of  the  prisoner's  dress 
were  stained  with  blood.  It  was  urged  that,  as  there  were 
many  vessels  near  the  place  where  the  transaction  was  alleged 
to  have  occurred,  the  probability  was  that  the  party  had  been 
taken  up  by  some  of  them  and  was  then  alive  ;  but  the  court, 


1  United  states  v.  Gilbert,  2  Sumner,  19. 


2  1  Cliff.  5. 


THE  DISCOVERY  OF  THE  BODY.  367 

though  it  admitted  the  general  rule  of  law,  left  it  to  the  jury 
to  say  upon  the  evidence,  whether  the  deceased  was  not  killed 
before  the  body  was  cast  into  the  sea,  and  the  jury  being  of 
that  opinion,  the  prisoner  was  convicted  and  executed ;  ^  but  it 
is  not  easy  to  perceive  why  the  natural  presumption  from 
these  facts  should  have  been  thus  restricted  to  a  presumption 
that  the  party  had  been  killed  before  he  was  thrown  over- 
board. And  in  a  case  much  like  the  above  a  witness  was 
allowed  to  testify,  as  telling  against  the  theory  that  the  per- 
son thrown  overboard  had  been  picked  up  by  a  passing  vessel, 
that  for  several  days  before  and  after  the  alleged  crime  no 
vessels  were  seen  in  the  neighborhood.^  The  proposition  is 
sustained  by  a  case  where  a  body  was  seen  in  the  flames  of  a 
burning  house.  The  fact  that  the  accused  was  seen  to  watch 
it  intently  was  regarded  as  of  peculiar  significance.  It  ap- 
jDeared  on  the  trial  that  the  accused  hatl  for  some  time  tried  to 
form  a  conspiracy  to  rob  the  deceased.^ 

The  rule  and  its  qualifications  are  well  exemplified  by  the 
case  of  Elizabeth  Ross,  who  was  tried  for  the  murder  of  Caro- 
line Walsh.  The  deceased  had  been  repeatedly  solicited  by 
the  prisoner  to  live  with  her  and  her  husband,  but  had  refused. 
However,  she  at  last  consented,  and  went  for  that  purpose  to 
the  prisoner's  lodgings,  in  Goodman's  Fields,  in  the  evening  of 
the  19th  of  August,  1831,  taking  with  her  her  bed  and  an  old 
basket,  in  which  she  was  accustomed  to  carry  tape  and  other 
articles  for  sale.  Xothwithstandmg  all  inquiry,  from  that 
evening  all  traces  of  the  deceased  were  lost,  and  when  the 
prisoner  was  required  by  her  relatives  to  account  for  her  dis- 
appearance she  prevaricated,  but  finally  asserted  that  she  had 
gone  out  early  in  the  morning  of  the  next  day,  and  had  not  re- 
turned. Many  circumstances  confirmed  their  suspicions  that  she 
had  been  murdered,  and  in  the  month  of  October  the  prisoner 
was  apprehended,  and  charged  with  the  murder  of  the  old  wo- 
man. From  the  testimony  of  the  prisoner's  son,  a  boy  of  twelve 
years  of  age,  it  appeared  that  she  had  suff'ocated  the  deceased 

1  Rex  V.  Hiudmarsh,  2  Leach  C.  C.  648. 

2  St.  Clair  v.  United  States,  154  U.  S.  134. 

8  Stocking  V.  State,  7  Ind.  326.  See  also  Gray  v.  Com.,  101  Pa.  St.  380  ; 
40  Leg.  Int.  90  ;  27  Albany  Law  Journal,  183,  where  it  was  said  by  the 
court,  "All  the  law  requires  is  that  the  corpus  delicti  shall  be  proved  as 
any  other  fact  tliat  is  beyond  a  I'easonable  doubt,  and  that  doubt  is  for 
the  jury." 


368  THE  DISCOVERY  OF  THE  BODY. 

on  the  evening  of  her  arrival,  by  placing  her  hands  over  her 
mouth,  and  pressing  on  her  chest ;  and  he  deposed  that  the 
following  morning  he  saw  the  dead  body  in  the  cellar  of  the 
house,  and  that  in  the  evening  he  saw  his  mother  leave  the 
house  with  something  large  and  heavy  in  a  sack.  A  medical 
man  deposed  that  the  means  described  would  be  sufficient  to 
cause  death.  It  happened  most  singularly  that  on  the  evening 
of  the  day  following  that  of  the  alleged  murder,  an  old  woman 
w^as  found  lying  in  the  street  in  the  immediate  neighborhood, 
in  a  completely  exhausted  condition,  and  in  a  most  filthy  and 
squalid  state.  On  being  questioned  she  stated  that  her  name 
was  Caroline  Welsh,  and  that  she  was  a  native  of  Ireland. 
Her  hip  was  found  to  be  fractured,  in  consequence  of  which 
she  was  conveyed  to  the  London  Hospital,  where  she  subse- 
quently died.  The  prisoner  when  apprehended  insisted  that 
this  was  the  female  whom  she  was  accused  of  having  mur- 
dered. The  resemblance  of  names  and  the  coincidence  of  time 
were  very  remarkable,  but  by  the  examination  of  numerous 
witnesses  the  following  points  of  difference  were  established : 
They  were  both  Irish  women ;  but  Caroline  Walsh  came  from 
Kilkenny ;  Caroline  Welsh  from  Waterford.  Walsh  was 
eighty-four  years  of  age,  tall,  of  a  sallow  complexion,  gray 
hair,  and  had  very  perfect  incisor  teeth  in  both  jaws,  having 
lost  only  a  side-tooth  in  the  upper  and  lower  jaws  from  the 
effect  of  continual  smoking  with  a  tobacco-pipe.  Welsh  (the 
woman  who  died  in  the  hospital)  was  about  sixty  years  of 
age,  tall,  dark,  like  a  mulatto,  but  had  no  front  teeth,  and  the 
alveolar  cavities  corresponding  to  them  had  been  obliterated 
for  a  considerable  time.  Walsh  was  healthy,  cleanly,  and 
neat  in  her  person,  and  her  feet  were  perfectly  sound ;  Welsh 
was  considerably  emaciated ;  in  a  dirty  and  filthy  condition ; 
her  hip  broken,  her  feet  covered  with  bunions  and  excres- 
cences, and  the  toes  overlapped  one  another.  The  two  women 
were  differently  dressed  :  Walsh  was  dressed  in  a  black  stuff 
gown,  a  broken  old  willow  bonnet,  and  a  faded  blue  shawl 
with  a  broad  border ;  Welsh  wore  a  striped  blue  cotton  gown, 
a  dark  or  black  silk  bonnet,  and  a  snuff-colored  shawl  with  lit- 
tle or  no  border.  Walsh's  clothing  was  proved  to  have  been 
sold  by  the  prisoner  to  different  persons,  and  almost  every 
article  was  produced  in  court  and  identified.  The  clothes  of 
Welsli,  on   account   of  their   disgusting  condition,  had  been 


THE  DISCOVERY  OF  THE  BODY.  359 

burnt  by  order  of  the  parish  authorities.  Both  of  these 
women  had  similar  baskets ;  that  of  Walsh  had  no  lid  or 
cover,  while  that  found  on  Welsh  had.  Lastly,  the  body  of 
the  latter  was  taken  up  from  the  burial-ground  of  the  London 
Hospital  for  the  purpose  of  identification,  and  it  was  sworn 
by  two  of  the  granddaughters  of  Walsh  not  to  be  the  body  of 
their  grandmother.  The  prisoner  was  convicted  and  exe- 
cuted.^ The  corpse  of  the  murdered  woman  was  most  probably 
sold  by  the  prisoner  for  the  purpose  of  dissection  ;  and  other 
murders  were  committed  about  the  same  time,  both  in  England 
and  Scotland,  from  the  same  motive.^ 

Touching  the  matter  under  discussion  a  learned  judge  has 
lately  said :  "  It  seems  to  me  that  there  is  no  definite  universal 
rule  of  law  on  the  subject,  that  there  are  no  established  definitions 
of  direct  evidence  and  presumptive  evidence  according  to  which 
the  former  kind  is  to  be  deemed  indispensable,  the  latter  kind 
insufiicient,  to  establish  a  corpus  delicti^  and  that  the  so-called 
rule  on  the  subject  is  no  more  than  a  prudential  motive  fit  to 
be  enounced  by  a  judge  for  the  purpose  of  assisting  a  jury  in 
the  discharge  of  their  duties,  and  warning  them  that  the  fact 
of  the  crime  itself,  the  unlawful  act,  ought  to  be  established  by 
sufficient  evidence — that  is,  e\idence  not  inadmissible  by  some 
rule  of  law  which  leaves  no  reasonable  doubt  in  their  minds 
that  the  crime  was  conmiitted  by  somebody."  ^  In  this  case 
the  accused  was  charged  with  the  murder  of  his  illegitimate 
child.  The  defendant  had,  during  the  pregnancy  of  the  mother, 
concealed  her  from  her  relatives  while  the  latter  were  visiting 
the  house,  and  he  had,  before  the  birth  of  the  child,  threatened 
to  smother  it.  He  was  present  at  the  birth  of  the  child,  and 
directly  after  delivery  took  the  child  from  the  house,  and  it 
was  never  more  seen.  It  was  also  shown  that  he  threatened 
to  shoot  the  mother  if  she  made  any  mention  of  the  child.* 

1  R.  V.  Ross,  O.  B.  Sess.  Pap.,  1831. 

2  Rex  V.  Burke,  Alison,  ut  supra,  Syme's  Jud.  Rep.  345  ;  Rex  v.  Bishop 
and  otliers,  O.  B.  Sess.  Pap.,  1832. 

8  Johnson,  J.,  in  Reg.  v.  Woodgate,  2  New  Zea.  Jur.  N.  S.  5.    See  also  10 
Cent.  L.  J.  165. 

*  See  svimmary  of  this  case  in  an  article  on  corpus  delicti,  10  Cent.  L.  J. 
164. 
24 


CHAPTER  II. 

THE   IDENTIFICATION   OF   THE   BODY. 

It  is  another  necessary  step  in  the  establishment  of  the 
coiyus  delicti  in  cases  of  homicide,  that  the  body,  when  discov- 
ered, be  satisfactorily  identified  as  that  of  the  person  whose 
death  is  the  subject  of  inquir}^!  Mr.  Justice  Park  stopped  the 
trial  of  a  woman,  charged  with  the  murder  of  her  illegitimate 
child,  because  the  supposed  body  was  nothing  but  a  mass  of 
corruption,  so  that  there  were  no  lineaments  of  the  human  face, 
and  it  was  impossible  even  to  distinguish  its  sex.^  On  the  trial 
of  a  woman  for  murder  of  her  brother,  a  child  eight  years  of 
age,  by  poison,  the  sexton  proved  the  interment,  on  the  29th  of 
June,  and  the  exhumation  on  the  12th  of  August  following,  of 
a  body  which  he  believed  to  be  that  of  the  deceased,  from  the 
coffin-plate,  and  the  place  from  which  he  had  exhumed  it,  but 
he  had  not  seen  the  body  in  the  coffin  at  the  time  of  interment, 
and  could  not  recognize  it  independently  of  those  circumstances, 
on  account  of  its  state  of  decay.  Mr.  Baron  Maule  refused  to 
receive  evidence  of  the  contents  of  the  coffin-plate,  on  the 
ground  that,  being  removable,  it  ought  to  have  been  produced  ^ 
and  there  being  no  other  evidence  of  identity,  stopped  the 
case.3  On  the  trial  of  a  girl  for  the  murder  of  her  illegitimate 
child,  it  appeared  that  she  was  proceeding  from  Bristol  to 
Llandago,  and  was  seen  near  Tintern  at  six  o'clock  in  the  even- 
ing, with  the  child  in  her  arms,  and  that  she  arrived  at  Llandago 
between  eight  and  nine  Avithout  it,  and  that  the  body  of  a  child 
was  afterwards  found  in  the  river  Wye  near  Tintern,  but  which 
appeared  from  circumstances  not  to  be  the  prisoner's  child  ; 
Lord  Abinger  held  that  the  prisoner  could  not  be  called  upon 
to  account  for  her  child,  or  to  say  where  it  was,  unless  there 

1  Thomas  v.  State,  67  Ga.  460  ;  Reg.  v.  Cheverton,  2  F.  &  F.  833. 

2  Mr.  Justice  Park's  charge  to  the  grand  jury  in  Rex  v.  Thurtell, 
Hertford  Winter  Assizes,  1824  ;  Reg.  v.  Edge,  ante. 

^  Reg.  V.  Edge,  anie;  and  see  Reg.  v.  Henley,  1  Cox  C.  C.  112. 
370 


THE  IDENTIFICATION  OF  THE  BODY.  S7l 

was  evidence  to  show  that  her  child  was  actually  dead  ;  the 
jury  were  not  sitting,  he  said,  to  inquire  what  the  prisoner  had 
done  with  her  child,  which  might  be  then  alive  and  well.^  In 
a  similiar  case  Mr.  Baron  Bramwell  observed  that  the  evidence 
of  identity  was  not  complete ;  that  still,  if  the  jury  thought 
there  was  reasonable  evidence  upon  the  point,  they  might  think 
that  if  the  child  was  still  ahve  the  prisoner  would  probably 
produce  it  in  a  case  where  her  life  Avas  at  stake,  but  that  she 
was  at  liberty  to  act  upon  the  defect  of  proof,  and  to  say  that 
the  prosecutor  had  failed  to  prove  the  identity .^ 

In  Smitfi's  case  the  prisoner  was  indicted  for  the  murder  of 
the  infant  child  of  one  Harriet  Ferguson.  Harriet  Ferguson, 
a  white  woman,  was  a  chambermaid  in  a  hotel  in  Alexandria, 
and  the  prisoner  was  a  servant  in  the  same  hotel.  The  woman 
on  the  4th  of  December  gave  birth  to  a  female  mulatto  child. 
The  prisoner  was  a  mulatto  and  acknowledged  that  he  was  the 
father  of  the  child.  On  the  7th  of  December  the  child  was  de- 
livered to  the  prisoner  by  the  mother  of  Harriet  Ferguson,  she 
saying  that  the  child's  mother  was  not  able  to  provide  for  it, 
and  that  her  other  daughters  were  unwillinof  that  it  should  re- 
main  in  the  house.  The  prisoner  stated  that  he  would  have  it 
raised  by  his  mother,  who  lived  six  or  eight  miles  in  the 
country.  The  child,  when  delivered  to  the  prisoner,  was  alive 
and  healthy,  and  had  on  at  the  time  a  flannel  petticoat,  a  slip, 
a  shirt,  and  was  wrapped  in  a  shawl.  About  the  16th  of 
December  the  body  of  a  female  mulatto  child  was  found  in  a 
pond  of  water  in  the  southeastern  portion  of  the  city,  in  the 
neighborhood  of  a  shipyard,  and  near  the  bank  of  the  Potomac 
River.  The  child  had  nothing  on  it  but  a  shirt  and  a  band 
around  its  body.  The  physician  who  made  the  j90*^  mortem 
examination  expressed  the  opinion  that  the  child  found  was 
born  alive  and  came  to  its  death  by  drowning,  and  also  ex- 
pressed the  opinion  that  the  child  found  was  between  one  and 
six  days  old  at  the  time  of  its  death.  But  there  was  no  evi- 
dence in  the  case  as  to  how  long  the  child  so  found  had  been 
dead.  The  child  found  in  the  pond  was  describetl  as  a  mulatto^ 
while  the  child  of  Harriet  Ferguson  was  a  hright  mulatto.  The 
child  delivered  to  the  prisoner  was  dressed  differently  from  the 
child  found  in  the  pond.     No  proof  Avas  offered  to  show  how 

1  Reg.  V.  Hopkins,  8  C.  &  P.  591. 

2  Reg.  V.  Rudge  Hereford  Summer  Ass.,  1857. 


372  THE  IDENTIFICATION  OF  THE  BODY. 

long  the  body  of  a  child  would  be  kept  in  a  good  state  of  pres- 
ervation in  Deceml)er  weather,  and  under  the  circumstances 
in  which  the  body  was  found.  So  for  anything  that  appeared 
the  child  found  might  have  been  dead  before  the  other  was 
born. 

About  the  21st  of  December,  the  ]3hysician  who  attended 
Harriet  Ferguson  at  the  delivery  of  her  child,  called  on  a  mag- 
istrate and  gave  him  the  name  of  the  prisoner,  who  had  ad- 
mitted to  being  the  father  of  the  child.  The  magistrate  having 
caused  the  prisoner  to  be  brought  to  his  office,  told  him  he 
knew  all  about  the  child  having  been  delivered  to  him,  and 
asked  him  w^hat  had  become  of  it.  The  prisoner  answered  that 
he  had  taken  the  child  to  his  mother's  and  that  a  w^oman  w^ho 
lived  near  his  mother  was  nursing  it.  The  magistrate  then 
told  the  prisoner  to  produce  his  mother,  or  the  child,  or  the 
nurse,  at  his  office  the  next  morning  and  dismissed  him.  The 
next  evening  the  prisoner  returned,  saying  that  he  could  not 
bring  the  child,  that  he  had  not  been  to  his  mother's.  The 
magistrate  then  told  him  that  he  was  afraid  that  the  child 
found  near  the  ship  yard  was  the  one  in  question,  and  asked 
him  what  had  made  him  do  such  a  thing.  The  prisoner  re- 
plied that  he  did  not  know  why  he  did  it ;  that  he  hardly  knew 
what  he  was  doing.  He  was  then  asked  what  had  made  him 
take  the  clothing  off  the  child,  to  which  he  replied  :  "  Do  you 
think  I  would  strip  the  poor  little  thing  ? "  The  magistrate 
then  asked  him  where  the  shawl  was  in  which  the  child  was 
wrapped.  The  prisoner  having  replied  that  it  was  in  the  room 
of  a  servant  of  the  hotel  under  the  bed,  it  was  brought  and 
identified  as  the  same  shawl  which  was  wrapped  around  the 
child  when  delivered  to  the  prisoner.  The  court  said  that, 
"  there  being  no  direct  proof  that  the  body  found  was  the  in- 
fant child  of  Harriet  Ferguson,  if  the  prisoner's  confession  was 
to  be  relied  upon  to  prove  that  fact,  it  ought  to  be  certain  that 
w^hat  he  said  ^-ras  intended  as  an  admission  that  the  body  found 
was  the  same  child  which  had  been  delivered  to  him."  And 
as  to  the  force  of  these  admissions  by  the  prisoner.  Christian, 
J.,  said  :  "  Certainly  these  admissions  must  produce  a  strong 
suspicion  against  the  accused ;  but  we  cannot  say,  as  the  court 
below,  which  heard  all  the  evidence,  could  not  say,  that  there 
was  an  admission,  on  the  part  of  the  accused,  that  the  child 
found  was  the  child  of  Harriet  Ferguson,  charged  in  the  in- 


THE  IDENTIFICATION  OF  THE  BODY.  373 

dictment  with  having  been  murdered.  In  the  absence  of  proof 
that  the  body  of  the  infant  found  Avas  the  same  as  charged  in 
the  indictment,  the  confessions  of  the  prisoner  must  be  distinct 
and  specific  before  we  can  say  that  upon  his  confession  the 
corpus  delicti  is  made  out ;  or,  in  other  words,  that  the  child 
found  was  the  same  which  Avas  born  of  Harriet  Ferguson, 
charged  in  the  indictment  as  murdered  by  the  prisoner.  His 
reply  to  the  magistrate's  question,  '  What  induced  3'ou  to  do 
such  a  thing  ? '  that  he  did  not  know  why  he  did  it,  that  he 
hardly  knew  what  he  was  doing,  was  not  construed  by  the 
court  below  into  an  admission  that  he  had  murdered  the  child 
delivered  to  him,  or  that  the  child  found  was  the  same  de- 
livered to  him.  His  reply  may  have  had  reference  to  his 
criminal  intercourse  with  the  mother  of  the  child,  who  was  a 
white  woman — he  being  a  negro  servant — or  to  the  fact  that 
he  had  received  the  child  and  delivered  it  to  the  woman  with 
whom  he  said  he  left  it  for  a  few  days  before  he  was  to  carry 
it  to  his  mother.  His  indignant  denial  to  the  magistrate  that 
he  had  stripped  the  clothing  off  the  child  is  inconsistent  with 
the  theory  that  his  other  declaration  was  intended  as  a  con- 
fession that  the  child  was  the  same."  ^ 

Where  the  accused  was  indicted  for  the  murder,  by  drown- 
ing, of  her  infant  child,  her  statement  was  that  the  child's 
father  had  written  for  it  and  that  she  had  sent  it  to  him  by  one 
going  by  rail.  The  only  other  evidence  was,  that  on  the  even- 
ing when  it  was  alleged  that  the  child  was  drowned,  the  ac- 
cused had  been  seen  going  in  a  direction  which  led  either  to 
the  river  or  to  the  station,  carrying  something  which  seemed 
like  a  child  of  about  the  age  of  the  missing  one,  and  that  on 
the  next  morning  the  body  of  a  child  of  the  same  sex,  and 
apparently  of  about  the  same  age,  was  found  dead  in  the  river. 
The  jury  were  not  satisfied  of  the  identity  of  the  child,  and 
returned  a  verdict  of  not  guilty.^  On  an  indictment  for  the 
murder  of  one  S.,  a  body  much  decomposed  was  found  con- 
cealed in  the  bed  of  a  small  creek  one  month  after  S.  was  last 
seen  alive  in  company  with  the  defendant.  Several  articles  of 
clothing  found  on  the  body  were  identified  by  several  wit- 
nesses as  belonging  to  S.,  but  another  witness  denied  that  the 
clothing,  though  resembling  in  color  that  of  S.,  belonged  to 

1  Com.  V.  Smith,  21  Grat.  809. 

2  Reg.  V.  Cheverton,  3  F.  &  F.  833. 


374  THE  IDENTIFICATION  OF  THE  BODY. 

him.  The  defendant  when  arrested  had  in  his  possession  a 
small  sorrel  horse  resembling  one  which  had  belonged  to  S. 
But  a  witness  testified  that  the  accused  and  S.  had  traded 
horses  a  few  days  before  the  disappearance  of  S.  Several 
physicians  testified  that  it  Avould  take  at  least  three  months  for 
a  body  to  reach  the  advanced  stage  of  decomposition  m  which 
this  was  when  found.  The  identity  of  the  body  was  held  not 
to  have  been  sufficiently  made  out,  and  the  judgment  of  con- 
viction was  reversed.! 

But,  nevertheless,  it  is  not  necessary  that  the  remains  should 
be  identified  by  direct  and  positive  evidence,  where  such  proof 
is  impracticable,  and  especially  if  it  has  been  rendered  so  by 
the  act  of  the  party  accused.  The  dead  body  may  be  identi- 
fied as  that  of  the  person  charged  to  have  been  murdered  by 
the  same  character  of  proof  as  may  establish  the  identity  of 
the  person  killing,  or  the  homicide  itself.^  In  New  York  the 
corpus  delicti  having  been  made  out,  the  identity  of  the  victim 
may  be  established  by  circumstantial  evidence.  This  rule  of 
the  common  law  has  not  been  changed  by  the  provision  of  the 
New  York  Penal  Code  heretofore  cited.^ 

The  identification  of  human  remains  has  been  many  times 
facilitated  by  the  preservation  of  the  head  and  other  parts  in 
spirits  ;  *  by  the  anti-putrescent  action  of  the  substances  used  to 
destroy  life ;  by  the  similarity  of  the  undigested  remains  of 
food  found  in  the  stomach,  with  the  food  which  it  has  been 
known  that  the  party  has  eaten  ;  ^  by  means  of  clothing  or  other 
articles  of  the  deceased  traced  to  the  possession  of  the  prisoner, 
and  unexplained  by  any  evidence  that  he  became  innocently 
possessed  of  them  ;  ^  by  means  of  artificial  teeth,^  and  numerous 
other  mechanical  coincidences.  In  a  case  cited  heretofore  on 
this  page,  there  was  no  direct  proof  of  the  identity  of  the 
body  found  ;  but  the  father  recognized  it  as  the  body  of  his 
son  by  a  minute  description  which  was  detailed  to  him  while 
on  the   stand.     He  recognized   the  clothing,  hat,  and   other 

1  Monk  V.  state,  27  Tex.  Grim.  App.  450  ;  11  S.  W.  460. 

2  Taylor  v.  State,  3  Tex.  Grim.  App.  97 ;  McGullough  v.  State,  48  Ind. 
109  ;  Reg.  v.  Gheverton,  2  F.  &  F.  833. 

8  N.  Y.  Pen.  Gode,  §  181.     See  People  v.  Palmer,  109  N.  Y.  110. 

*  Rex  V.  Hayes  et  al,  3  Par.  &  F.  73. 

6  Rex  V.  McDougal,  Burnett's  C.  L.  of  Scotland,  540. 

6  Rex  V.  Ross,  ante ;  Reg  v.  Good,  Sess.  Pap.,  May,  1842. 

'  Reg.  V.  Manning,  and  Webster's  Gase,  supra. 


THE  IDENTIFICATION  OF  THE  BODY.  375 

articles  found  near  the  body.  Papers  found  on  the  body  had 
been  given  a  short  time  previous  to  a  person  bearing  the  name 
charged  in  the  indictment ;  and  property  found  in  the  posses- 
sion of  the  defendant  was  proved  to  have  belonged  to  the  per- 
son charged  to  have  been  murdered.^  The  remains  of  a  man 
which  had  lain  undiscovered  upwards  of  twenty-three  years, 
were  identified  by  his  surviving  widow  from  peculiarities  in 
the  teeth  and  skull,  and  from  a  carpenter's  rule  found  with 
them  .2 

In  a  recent  case  in  Pennsylvania — a  trial  for  murder — it  ap- 
peared that  the  deceased  had  eaten  breakfast  with  her  son 
about  eight  o'clock  on  a  morning  of  February,  1877,  and  that 
she  had  disappeared  before  four  o'clock  in  the  afternoon  of  the 
same  day,  when  the  son  returned  from  school,  and  that  she  was 
never  more  seen.  The  evidence  considered  sufficient  to  es- 
tablish the  identity  of  the  deceased  and  prove  the  corpus 
delicti  is  given  in  the  language  of  the  court :  "  On  the  4th  of 
April,  1878,  a  human  skull  was  found  on  the  river  shore,  near 
the  house  in  which  Mrs.  McCready  lived.  The  hair  attached 
to  the  skull  was  evidently  that  of  a  woman ;  it  was  black  and 
gray,  corresponding  to  the  hair  shown  to  have  belonged  to  her. 
The  skull  showed  marks  of  violence ;  there  were  two  wounds, 
either  of  which  would  be  sufficient  to  produce  death.  The 
jaw-bone  found  near  the  skull  was  identified  by  two  witnesses 
as  the  jaw-bone  of  the  deceased,  by  reason  of  certain  peculiar- 
ities which  they  described."^ 

The  prosecution  is  entitled  to  exhibit  the  clothing  worn  by 
the  deceased  for  the  purpose  of  identifying  the  body.*  And  to 
assist  in  identification,  the  age,  size,^  and  color  of  hair  of  the 
missing  man  may  be  shown.^  In  one  case,  after  it  had  been 
shown  that  in  these  particulars  the  body  found  resembled  the 
alleged  murdered  man,  a  dentist  was  introduced  as  a  "witness 
and  permitted  to  testify  that  he  had  extracted  certain  teeth 
from  the  mouth  of  the  alleged  murdered  man,  and  that  he  had 
noticed  peculiar  marks  upon  those  remaining,  and  that  the 
same  teeth  were  missing  from  the  jaw  of  the  body  found,  and 

1  Taylor  u.  State,  supra. 

2  Rex  V.  Clewes,  Worcester  Spr.  Ass.,  1830. 

8  Gray  v.  Com.,  101  Pa.  St.  380  ;  40  Leg.  Int.  90. 

4  Early  v.  State,  9  Tex.  Crim.  App.  476. 

5  McGill  V.  State,  25  Tex.  Cr.  App.  499        «  Marion  v.  State,  20  Neb.  233. 


376  THE  IDENTIFICATION  OF  THE  BODY. 

that  the  same  marks  were  on  the  remaining  teeth,^  The  body 
of  the  lamented  Prince  Imperial,  who  was  killed  in  South 
Africa  a  few  years  ago,  was  stripped  of  clothing,  and  so  muti- 
lated that  identification  was  almost  entirely  dependent  on 
peculiarities  of  the  teeth.  And  one  of  the  witnesses  introduced 
to  identify  the  body  found  in  the  sewer  in  Chicago  as  that  of 
Dr.  Cronin  was  a  dentist,  who  recognized  work  that  he  had 
done  in  the  mouth  of  the  missing  man,  A  man  was  convicted 
of  the  murder  of  a  creditor  who  had  called  to  obtain  payment 
of  a  debt,  and  whose  body  he  had  cut  into  pieces  and  attempted 
to  dispose  of  by  burning;  the  effluvium  and  other  circum- 
stances alarmed  the  neighbors,  and  a  portion  of  the  body  re- 
mained unconsumed,  sufficient  to  prove  that  it  was  that  of  a 
male  adult ;  and  various  articles  which  had  belonged  to  the 
deceased  were  found  on  the  person  of  the  prisoner,  who  was 
apprehended  putting  ofi  from  the  Black  Rock  at  Liverpool, 
after  having  ineffectually  endeavored  to  elude  justice  by  drown- 
ing himself.^  A  sailor  Avas  charged  with  the  murder  on  ship- 
board of  the  captain  and  mate  of  a  vessel  while  the  vessel  was 
lying  at  anchor  in  Long  Island  Sound.  The  vessel  was 
sunk  shortly  after  the  supposed  murder.  It  did  not  appear 
that  there  was  any  one  on  board  of  the  vessel  on  the  evening 
of  the  murder  except  the  captain  and  mate  and  the  pris- 
oner. The  prisoner  left  the  vessel  in  a  sinking  condition 
on  the  evening  following  the  murder,  and  was  arrested 
as  he  landed  on  the  shore.  In  his  possession  was  found 
property  belonging  to  captain  and  mate.  Neither  of  the 
bodies  was  immediately  recovered.  But  about  six  months 
afterwards  a  body  was  washed  ashore  which  bore  a  very 
striking  resemblance  to  that  of  the  missing  captain ;  but 
being  in  an  advanced  stage  of  decomposition  it  could  not 
be  distinctly  identified.  The  jury  w^ere  however  satisfied  and 
the  prisoner  w^is  convicted.^ 

On  the  trial  of  a  Chinaman  for  the  murder  of  his  employer, 
it  was  shown  that  the  house  where  the  dead  body  was  found 
was  used  as  a  Chinese  wash-house ;  that  Ah  Long,  the  alleged 
deceased,  was  the  proprietor ;  that  he  was  assisted  in  the  busi- 
ness by  two  other  Chinamen  ;  that  these  three  were  usually  at 

^  Lindsay  v.  People,  63  N.  Y.  143. 

2  Rex  V.  Cook,  Leicester  Summer  Ass.,  1834. 

»  People  V.  Wilson,  3  Park,  Cr.  R.  199. 


THE  IDENTIFICATION  OF  THE  BODY.  377 

the  house  ;  that  the  wash-house  was  being  used  as  usual  on  the 
day  of  the  homicide;  that  some  human  being  therein  was 
killed ;  that  the  house  was  burnt  after  the  homicide  occurred  ; 
that  the  body  found  was  badly  charred  by  the  fire  ;  that  Ah 
Long  had  never  been  seen  after  the  fire ;  and  that  the  other 
occupants  had  been  seen  alive.  The  jury  considered  the  fact  of 
identity  established,  and  the  Supreme  Court  declined  to  disturb 
the  verdict.^ 

Some  charred  bones  of  a  human  being  were  found  in  the 
ashes  of  a  log  pile,  and  in  a  creek  and  among  the  bones  were 
found  some  peculiar  hair-pins.  For  the  purpose  of  identifying 
the  bones  as  part  of  the  remains  of  one  Peggy  Joly,  evidence 
was  admitted  to  the  effect  that  the  supposed  deceased  had,  two 
years  before,  worn  such  pins  ^ 

In  a  case  where  the  evidence  tended  to  show  that  the  prison- 
ers had  shot  the  alleged  deceased  person  and  killed  him  in 
order  to  get  possession  of  his  property ;  that  the  person  alleged 
to  have  been  killed  was  never  afterwards  seen ;  that  on  the 
night  in  which  the  murder  was  supposed  to  have  been  commit- 
ted the  prisoners  built  a  large  fire,  and  were  seen  Avatching  it, 
and  that  subsequently  some  bones  were  found  in  the  fire  too 
fragmentary  to  be  identified  as  human  bones,  this  was  held  suf- 
ficient to  establish  the  corpus  delicti? 

Photographs  may  be  introduced  in  evidence  for  the  purpose 
of  facilitating  identification.*  A  witness,  unacquainted  with 
the  deceased,  having  seen  the  dead  body,  testified  to  having 
seen  the  deceased  alive  at  a  certain  saloon  at  a  time  subsequent 
to  the  time  when,  according  to  the  theory  of  the  prosecution, 
he  was  killed  by  the  defendant.  Being  cross-examined,  he  se- 
lected a  photograph  which  he  said  resembled  the  man  he  had 
seen  in  the  saloon.  This  Avas  a  picture  of  the  brother  of  the 
deceased.  The  State  then  offered  in  rebuttal  a  photograph  of 
the  deceased  which  bore  no  resemblance  to  the  other.  This 
was  held  admissible  to  weaken  the  force  of  the  testimony.^  In 
a  somewhat  celebrated  case^  a  mutilated  body  whose  face  Avas 
discolored  and  swollen  was  discovered,  after  havino-  been 
buried,  apparently,  for  some  days.     The  witness  Avho  found  it 

1  State  V.  Ab  Chuey.  14  Nev.  79. 

2  State  V,  Williams,  7  Jones'  L.  446.  »  People  v.  Alviso,  55  Cal.  230. 

<  Beavers  v.  State,  58  Ind.  530.  s  State  v.  Holden,  43  Minn.  850. 

6  Udderzook  v  Com.  (Pa.),  26  P.  F.  S.  840. 


378  THE  IDENTIFICATION  OF  THE  BODY. 

had  never  seen  the  person  before.  But  he  was  allowed  to  tes- 
tify that  the  face  resembled  a  photograph  of  a  person  alleged 
to  be  the  one  found.  The  question  whether  he  could  identify 
it  was  for  the  jury.* 

1  And  see  Gray  v.  Com.,  101  Pa.  St.  380. 


CHAPTER  III. 

THE  CAUSE   OF  DEATH, 

It  sometimes  happens  that  a  person  determined  on  self- 
destruction  resorts  to  expedients  to  conceal  his  guilt,  that  his 
memory  may  be  saved  from  dishonor.  And  instances  have 
been  known  where,  in  doubtful  cases,  the  relatives  of  the  de- 
ceased have  used  great  exertions  to  rescue  his  character  from 
ignominy  by  substantiating  a  charge  of  murder.^  On  the  other 
hand,  in  frequent  instances,  attempts  have  been  made  by  those 
who  have  really  been  guilty  of  murder  to  perpetrate  it  in  such 
a  manner  as  to  induce  a  belief  that  the  party  had  died  by  his 
own  intentional  act. 

Accident  and  natural  causes  are  also  frequently  suggested 
and  plausibly  urged  as  the  causes  of  death,  where  the  pre- 
tence cannot  receive  direct  contradiction,  and  where  the  truth 
can  be  ascertained  only  by  a  comparison  of  all  the  attend- 
ant circumstances ;  some  of  which,  if  the  defence  be  false,  are 
commonly  found  to  be  irreconcilable  with  the  cause  alleged. 
Where  the  circumstances  are  natural  and  real,  observes  Ros- 
coe,2  and  have  not  been  counterfeited  with  a  view  to  evidence, 
they  must  necessarily  correspond  and  agree  with  each  other, 
for  they  really  so  co-exist,  and  therefore  if  any  one  circum- 
stance, which  is  essential  to  the  case  attempted  to  be  estab- 
lished, be  wholly  inconsistent  and  irreconcilable  with  such 
other  circumstances  as  are  known  or  admitted  to  be  true,  a 
plain  and  certain  inference  results  that  fraud  and  artifice  have 
been  resorted  to,  and  that  the  hypothesis  to  which  such  a  cir- 
cumstance is  essential  cannot  be  true.  In  the  proof  of  crim- 
inal homicide  the  true  cause  of  death  must  therefore  be  clearly 

*  Rex  V.  Cowper,  13  How.  St.  Tr.  1106.  And  see  2  Roscoe  Cr.  Ev. 
(8th  Am.  Ed.)  938 ;  Stark.  Ev.  (10th  Am.  Ed.)  863. 

2  Roscoe's  Cr.  Ev.  (8th  Am.  Ed.)  938,  quoting  from  2  Stark.  Ev.  (2d  Ed.) 
521. 

379 


380  THE  CAUSE  OF  DEATH. 

established,  and  the  possibility  of  accounting  for  the  event  by 
self-inflicted  violence,  accident,  or  natural  causes  excluded ;  and 
only  when  it  has  been  irrefragably  proved  that  no  other  hy- 
pothesis  will  explain  all  the  conditions  of  the  case,  can  it  be  safely 
and  justly  concluded  that  it  has  been  caused  by  intentional  in- 
jury.* In  the  case  of  Spencer  Cowper^  tried  for  the  alleged 
murder  of  Sarah  Stout,  it  was  doubtful  whether  the  deceased, 
who  Avas  found  with  her  head  under  water,  had  been  drowned 
by  another,  or  had  committed  suicide,  or  whether  her  death 
was  caused  by  violence  previous  to  the  immersion,  and  the  ac- 
cused was  acquitted.2  Where  on  a  trial  for  murder  it  was 
wholly  uncertain  whether  the  death  of  the  deceased  was 
brought  about  by  blows  inflicted  by  another,  or  by  an  accidental 
fall  into  an  open  hearth  and  the  burns  resulting  therefrom, 
the  corpus  delicti  was  considered  not  to  be  established  and  no 
conviction  could  be  had.^  In  a  recent  case  in  Georgia  a  Avoman 
was  tried  and  convicted  for  the  alleged  murder  of  her  child. 
The  evidence  showed  that  shortly  after  she  had  been  delivered 
of  the  child,  it  was  found  about  300  yards  from  the  house 
under  a  buggy.  It  was  returned  to  its  mother,  and  was  at  that 
time  alive  and  in  a  healthy  condition.  The  next  morning  it 
was  dead.  There  were  no  marks  of  violence  on  it,  and  the 
physician  could  not  say  whether  it  died  from  exposure  or  had 
been  smothered.  It  might  have  died  from  natural  causes. 
This  evidence  was  sufficient  to  raise  at  most  a  suspicion,  and 
was  inadequate  to  sustain  the  assertion  that  the  child  had  been 
murdered,  and  the  judgment  of  conviction  was  reversed,* 

The  case  of  James  Harris,  given  in  the  Theory  of  Presumptive 
Proof,^  well  illustrates  the  importance  of  closely  observing  the 
rule  just  laid  down.  Harris,  an  innkeeper,  was  tried  and  con- 
victed for  the  murder  of  one  Grey,  who  stopped  at  the  inn 
over  night.  Morgan,  a  servant  at  the  inn,  swore  that  his  mas- 
ter had  strangled  Grey  while  pretending  to  assist  the  latter, 
who  was  in  a  fit,  and  that  he  had  afterwards  rifled  the  pockets 
of  the  dead  man.     Harris,  in  great  indignation,  repudiated  the 

1  Lee  V.  State,  76  Ga.  498. 

2  Rex  V.  Cooper,  13  How.  St.  Tr.  1106.  See  2  Roscoe's  Cr.  Ev.  (8th  Am. 
Ed.)  939  ;  Stark.  Ev.  (10th  Am.  Ed.)  863. 

8  Lovelady  v.  State,  14  Tex.  Crim.  App.  545. 
*  Lee  V.  State,  supra. 

&  See  Phillips'  Famous  Cases  of  Circumstantial  Evidence  (4th  Ed.), 
1879. 


THE  CAUSE  OF  DEATH.  381 

charge,  and  threatened  a  prosecution  for  perjury.  Thereupon, 
a  woman  who  was  also  employed  in  the  inn  came  and  testified 
that  she  had  seen  her  master  clandestinely  burying  some  gold. 
The  spot  which  she  pointed  out  was  examined  and  gold  found. 
After  his  execution  the  real  facts  became  known  in  this  way  : 
Morgan  and  the  woman  were  engaged  to  be  married,  but  hav- 
ing quarrelled  the  truth  came  out.  Morgan  had,  some  time  be- 
fore the  visit  of  Grey  to  the  inn,  threatened  vengeance  on  his 
master  for  a  blow  and  took  advantage  of  this  occasion  to 
gratify  his  hate.  The  woman  had  actually  seen  Harris  conceal- 
ing money  in  the  place  pointed  out,  and  had  agreed  with  her 
lover  that,  as  soon  as  the  hoard  had  reached  a  certain  sum, 
they  would  purloin  it.  The  threat  of  Harris  to  prosecute  her 
lover  for  perjury  determined  her  to  take  the  step  which  she  did, 
and  to  give  a  false  appearance  to  an  innocent  fact.  Grey  had 
died  in  an  apoplectic  fit. 

Jjut  in  accordance  with  the  principles  which  govern  the 
proof  of  every  other  element  of  the  corpus  delicti^  it  is  not 
necessary  that  the  cause  of  death  should  be  verified  by  direct 
and  positive  evidence  ;  it  is  sufficient  if  it  be  proved  by  cir- 
cumstantial evidence  which  produces  a  moral  conviction  in  the 
minds  of  the  jury,  equivalent  to  that  which  is  the  result  of 
positive  and  direct  evidence.^ 

There  is  failure  of  proof  where  the  circumstances  relied  on 
to  prove  that  death  was  caused  by  the  criminal  act  of  a  person 
other  than  the  deceased  are  consistent  with  the  theor}'^  that 
death  was  produced  by  natural  causes.^ 

It  was  said  in  one  case  that  the  body  found  and  identified 
with  the  throat  cut,  and  the  fact  that  there  was  no  sign  of 
suicide  or  accident,  are  ample  to  prove  the  coitus  delicti? 

Evidence  of  the  death  and  identity  of  the  persons  alleged  to 
have  been  murdered,  and  that  they  came  to  their  death  by 
drowning,  is  sufficient  proof  of  the  corjpus  delicti.^ 

On  a  prosecution  for  wife  murder,  the  fact  that  the  death 
was  caused  by  human  agency,  and  Avas  not  suicide,  is  suf- 
ficiently established  by  the  fact  that  the  body  was  found  in  a 
cow-pen  with  a  skull-wound  about  the  size  of  a  silver  dollar, 

'  See  the  language  of  Lord  Meadowbank,  in  Reg.  v.  Humphreys,  Swin- 
ton's  Rep.  315. 

2  Dreesen  v.  State,  38  Neb.  375, 

3  Thomas  v.  State,  67  Ga.  460.  *  Nicholas  v.  Com.  (Va.),  21  S.  E.  361. 


382 


THE  CAUSE  OF  DEATH. 


and  that  a  blow  had  driven  that  portion  of  the  skull  directly 
in  upon  the  brain,  and  that  the  throat  and  neck  of  deceased 
were  scratched  and  black.^ 

In  a  prosecution  for  manslaughter  by  procuring  an  abortion, 
it  was  held  that  the  corpus  delicti  might  be  established  not  only 
by  the  post-mortem^  but  also  by  the  fact  of  the  pregnancy,  illness, 
and  treatment  of  the  accused,  by  whom  she  was  treated,  and 
her  condition  generally  to  the  time  of  her  death.  And  it  was 
said  that  a  history  of  her  illness  from  the  beginning  to  the  end, 
in  detail,  was  perfectly  legitimate  to  prove  the  corpus  delicti  ; 
and  that  what  the  defendant  said  and  did  in  connection  with 
such  illness  while  attending  upon  the  sick  girl  was  properly  a 
part  of  such  history  .^ 

A  young  woman  who  had  borne  a  child  to  him  was  taken 
by  her  seducer  from  her  father's  house,  under  the  pretence  of 
conveying  her  to  Ipswich  to  be  married.  The  prisoner  having 
represented  that  the  parish  officers  meant  to  apprehend  the 
deceased,  she  left  her  house  on  the  18th  of  May  in  disguise,  a 
bag  containing  her  own  clothes  having  been  taken  by  the 
prisoner  to  a  barn  belonging  to  his  mother,  where  it  Avas 
agreed  that  she  should  change  her  dress.  The  deceased  was 
never  heard  of  afterwards  ;  and  the  various  and  contradictory 
accounts  given  of  her  by  the  prisoner  having  excited  suspicions, 
which  were  confirmed  by  other  circumstances,  it  was  ulti- 
mately determined  to  search  the  barn,  where,  on  the  19th  of 
April,  after  an  interval  of  nearly  twelve  months,  the  body  of 
a  female  was  found,  which  was  clearly  identified  as  that  of 
the  deceased.  A  handkerchief  was  drawn  tight  around  the 
neck,  and  a  wound  from  a  pistol-ball  was  traced  through  the 
left  cheek,  passing  out  of  the  right  orbit;  and  three  other 
wounds  were  found,  all  of  which  had  been  made  by  a  sharp 
instrument,  and  one  of  which  had  entered  the  heart.  The 
prisoner,  who  in  the  interval  had  removed  from  the  neighbor- 
hood, upon  his  apprehension  denied  all  knowledge  of  the 
deceased  ;  but  in  his  defence  he  admitted  the  identity  of  the 
remains,  and  alleged  that  an  altercation  took  place  between 
them  at  the  barn,  in  consequence  of  which,  and  of  the  violence 
of  temper  exhibited  by  the  deceased,  he  expressed  his  deter- 
mination not  to  marry  her,  and  left  the  barn  ;  but  that  im- 

1  Melcik  V.  State  (Tex.  Crim.  App.),  24  S.  W.  417. 
9  People  V.  Aikin,  66  Mich.  460. 


THE  CAUSE  OF  DEATH.  383 

mediately  afterwards  he  heard  the  report  of  a  pistol,  and  going 
back  found  the  deceased  on  the  ground  apparently  dead  ;  and 
that,  alarmed  by  the  situation  in  which  he  found  himself,  he 
formed  the  determination  of  burying  the  corpse,  and  account- 
ing for  her  absence  as  well  as  he  could.  But  the  variety  of 
the  means  and  instruments  employed  to  produce  death,  some 
of  them  unusual  with  females,  in  connection  with  the  contra- 
dictory statements  made  by  the  prisoner  to  account  for  the 
absence  of  the  deceased,  entirely  discredited  the  account  set 
up  by  him.  He  afterwards  made  a  full  confession,  and  was 
executed  pursuant  to  his  sentence.* 

But  these  heads  of  evidence  belong  rather  to  the  department 
of  medical  jurisprudence.  Such  auxiliary  e\idence  is  frequently 
of  the  highest  value  in  demonstrating  the  falsehood  and  im- 
possibility of  the  alleged  defence ;  but  when  uncorroborated 
by  conclusive  moral  circumstances,  it  must  be  received  with  a 
certain  amount  of  circumspection  and  reserve,  of  the  necessity 
of  which  some  striking  illustrations  have  occurred  in  other 
parts  of  this  volume.  These  preliminary  considerations 
naturally  lead  to  the  application  of  them  to  the  proof  of  the 
corpus  delicti  in  some  special  cases  of  great  importance  and 
interest. 

■  Rex  V.  Corder,  Bury  St.  Edmunds  Summ.  Ass. 


DIVISION  III. 

APPLICATION   OF  THE  GENERAL  PRINCIPLES  TO  PROOF  OF 
THE  CORPUS  DELICTI  IN   CASES  OF   POISONING. 


CHAPTER  I 

THE  CAUSE   OF   DEATH. 

Among  the  most  important  grounds  upon  which  tlie  proof  of 
criminal  poisoning  commonly  rests  are,  the  symptoms  during 
life,  and  jpost-inoHem  appearances ;  but  these  subjects  belong 
to  another  department  of  science,  and  have  only  an  incidental 
connection  Avith  the  subject  of  this  treatise.  As  is  the  case 
with  regard  to  all  other  questions  of  science,  courts  of  justice 
must  derive  their  knowledge  from  the  testimony  of  persons 
who  have  made  them  the  objects  of  their  special  study,  apply- 
ing to  the  data  thus  obtained  those  principles  of  interpretation 
and  judgment  which  constitute  the  tests  of  truth  in  all  other 
cases.^ 

An  expert  chemist  has  been  held  to  be  a  proper  witness  to 
testify  as  to  the  effect  of  various  poisons  in  the  system,  and 
the  fatal  dose.^  But  where  an  undertaker  was  allowed  to 
testify  as  an  expert,  as  to  the  improbability  of  an  injection  of 
arsenic  after  death  being  retained,  the  learned  judge  in  review- 
ing the  case  said  that  the  undertaker  "  presented  no  claims 
entitling  him  to  give  an  opinion  as  a  scientific  expert,  and  his 
testimony  was  improper  so  far  as  it  related  to  anything  but 
specific  facts."  ^ 

1  For  a  valuable  Essay  on  Circumstancial  Evidence  in  Poisoning  Cases, 
by  Prof.  John  H.  Wigmore,   see  Medico-Legal  Journal,  Dec.  1888,  p.  298. 

2  State  V.  Cook,  17  Kan.  392.  »  People  v.  Millard,  53  Mich.  63. 

384 


THE  CAUSE  OF  DEATH.  385 

The  first  thing  necessary  is  to  determine  the  cause  of  death.^ 

It  is  obviously  essential  in  order  to  secure  a  conviction  on  a 
trial  for  criminal  poisoning,  that  the  particular  symptoms  and 
'postr-nwHem  appearances  should  be  shown  to  be  not  incom- 
patible with  the  hypothesis  of  death  from  poison.^  In  general 
such  appearances  are  inconclusive,  since  though  they  are  com- 
monly characteristic  of  death  from  poison,  they  not  unfre- 
quently  resemble  the  appearance  of  disease,  and  may  have  been 
produced  by  some  natural  cause. 

In  Smethursf  s  case,^  which  involved  much  conflicting  evi- 
dence as  to  morbid  appearances  supposed  to  have  been  indicative 
of  death  by  slow  poisoning,  a  pardon  was  granted  after  convic- 
tion, on  the  ground  of  the  imperfection  of  medical  science,  and 
of  the  fallibility  of  judgment,  with  respect  to  an  obscure 
malady,  even  of  skilful  and  experienced  medical  practitioners. 

The  sjTiiptoms,  for  example,  of  cholera  morbus,  peritonitis, 
ulceration  of  the  stomach,  and  hernia,  resemble  in  a  greater  or 
less  degree  -the  symptoms  of  irritant  poisons  ;  Avhile  the  symp- 
toms following  the  administration  of  narcotic  poisons  much 
resemble  those  of  such  diseases  as  apoplexy,  epilepsy,  inflamma- 
tion of  the  brain,  tetanus,  and  heart  disease.  It  is  therefore 
generally  regarded  as  unsafe  to  convict  on  symptoms  alone.* 

Nevertheless,  as  to  some  particular  poisons,  the  symptoms 
may  be  so  characteristic  as  to  afford  unmistakable  evidence  of 
poisoning,  and  preclude  all  possibility  of  referring  the  event  of 
death  to  any  other  cause.  Thus  in  Palmer's  case,  it  was  con- 
clusively shown  by  numerous  witnesses  of  the  greatest  profes- 
sional experience,  that  the  symptoms  in  the  course  of  their 
progress  were  clearly  distinguishable  from  those  of  tetanus  or 
any  other  known  form  of  disease,  and  were  not  only  consistent 
with,  but  specially  characteristic  of,  poisoning  by  strychnine. 

And  there  are  certain  poisons  which  manifest  themselves  by 
their  odor,  which  is  easily  detected  on  opening  the  body ;  such 
are  alcohol,  chloroform,  nicotine,  opium,  and  prussic  acid. 
And  external  stains,  such  as  are  produced  by  mineral  acids,  are 
among  the  strongest  indications  furnished  by  a  2>ost-7nort€7n 
examination.     Where  narcotic   poisons   have   been   used,  the 

1  Polk  V.  state,  36  Ark.  117. 

2  Hatchett  v.  Com.,  76  Va.  1026.    See  Reg.  v.  Lawson,  infra. 
8  Reg.  V.  Smethurst,  C.  C.  C.  Sess.  Pap.,  Aug.  1859. 

«  People  V.  Millard,  53  Mich.  63  ;  Joe  v.  State,  6  Fla.  591;  65  Am.  Dec.  679. 
25 


386  THE  CAUSE  OF  DEATH. 

examination  will  commonly  reveal  an  inflamed  and  congested 
state  of  the  brain  and  spinal  cord,  for  these  are  the  parts 
affected  by  this  class  of  poisons.  From  the  use  of  irritant 
poisons  ulceration,  and  even  perforation  of  the  stomach,  very 
often  results.  And  where  none  of  these  traces  or  appearances 
present  themselves  on  the  post-mortem  examination  it  is  a 
reasonable  conclusion  that  death  has  not  been  caused  by  the  ad- 
ministration of  any  of  the  poisons  referred  to. 

In  the  famous  Harris  case,  in  the  account  of  the  condition 
of  the  deceased,  of  her  various  symptoms,  and  of  the  treatment 
and  results,  the  testimony  of  the  attendant  physicians  agreed, 
and  they  all  testified  in  the  most  positive  manner,  that  the  de- 
ceased came  to  her  death  from  an  overdose  of  morphine. 
They  based  their  testimony  in  that  respect  upon  the  appear- 
ance and  existence  of  conditions  upon  and  in  the  person  which 
negatived  the  possibility  of  any  other  cause  of  death.  One  of 
the  physicians  testified  that  it  was  not  an  ambiguous  case,  and 
that  the  three  stages  of  pleasurable  excitement,  of  coma,  and 
of  entire  nervous  prostration,  with  an  almost  entire  dilation  of 
the  pupils  of  the  eyes  before  death,  were  a  group  of  symptoms 
which,  in  connection  with  other  observable  conditions  of  the 
patient,  enabled  him  to  state  as  a  fact  that  she  had  had  an 
overdose  of  morphine.  An  autopsy  was  made  some  fifty -five 
days  after  death,  in  which  the  examination  of  the  body  was 
greatly  facilitated  by  its  good  state  of  preservation,  a  circum- 
stance due  to  the  fact  that  the  body  having  been  embalmed 
had  been  interred  in  a  brick  vault  kept  dry  by  the  gravelly 
soil  surrounding  it.  There  was  the  congested  appearance  of 
the  brain,  described  as  2^  lyost-rnortem  evidence  of  opium  poison- 
ing. An  elaborate  analysis  resulted  in  the  finding  of  morphine 
in  the  contents  of  the  stomach,  and  in  the  membranes.  It  ap- 
peared that  the  fluid  used  for  embalming  contained  no  mor- 
phine. As  the  absorption  of  morphine  is  very  quick,  the  find- 
ing of  morphine  in  the  analysis  of  the  contents  of  the  stomach, 
taken  in  connection  with  the  fact  that  the  deceased  lived 
twelve  hours  after  being  taken  ill,  would  be  significant  of  the 
taking  of  an  excessive  dose  of  the  drug.  Commenting  on  the 
evidence,  Mr.  Justice  Gray  said  :  "  The  determination  as  to  the 
cause  of  death  can  rest,  in  every  judgment,  safely  upon  a 
group  of  symptoms  which  invariably  accompany  and  char- 
acterize poisoning  by  opium  or  morphine,  upon  the  subsequent 


THE  CAUSE  OF  DEATH.  387 

revelations  by  autopsy  and  analysis,  and  upon  the  previous 
constitutional  conditions  of  the  deceased,  all  of  which  together 
preclude  a  diagnosis  of  any  other  physical  disturbance  differing 
from  that  made."  And  again  :  "  While,  undoubtedly,  cases  of 
death  do  occur  of  which  an  autopsy  may  not  reveal  the  causes, 
and  while  the  evidence  of  witnesses  did  show  that  there  were 
instances  of  death  from  other  causes  than  that  of  morphine 
poisoning,  Avhere  some  symptoms  were  exhibited  similar  to  those 
observed  in  this  instance,  the  group  of  these  peculiar  symptoms, 
which  are  admitted  to  belong  to  narcotic  poisoning,  considered 
with  the  proof  of  a  constitutional  tolerance  for  the  drug,  and 
with  the  positive  testimony  as  to  the  discovery  of  morphine  by 
subsequent  chemical  analysis,  gave  a  basis  for  a  judgment  as 
to  the  cause  of  death  which  I  see  no  way  of  doubting  or  of 
disturbing."  ^ 

It  is  a  very  important  circumstance  in  corroboration  of  the 
reality  of  alleged  poisoning,  if  several  persons  are  simultane- 
ously affected  with  symptoms  indicative  of  poisoning,  after 
partaking  of  the  same  food,  as  when  four  members  of  a  family 
were  taken  ill  after  having  eaten  of  yeast  dumplings  made  by 
the  prisoner,  who  was  the  cook,  while  those  members  of  it 
w^ho  had  not  partaken  of  them  were  not  affected.^ 

In  the  famous  Graves  case  the  deceased,  having  received  a 
bottle  of  a  dark  fluid,  purporting  to  be  whisky  from  an  anony- 
mous source,  prepared  two  "  toddies,"  one  for  herself  and 
one  for  the  friend  with  whom  she  was  living,  using  about  the 
same  quantity  of  the  contents  of  the  bottle  for  each.  Both 
were  taken  sick  soon  after  drinking,  exhibiting  symptoms  of 
arsenical  poisoning.  One  only  recovered.^  In  a  recent  case 
of  attempted  poisoning  in  Georgia,  the  servants  and  all  the 
members  of  the  family  who  had  partaken  of  the  meal  were 
taken  sick,  some  at  an  hour,  and  others  at  a  longer  time  after 

1  People  V.  Harris,  136  N.  Y.  423. 

'  Rex  V.  Fenning,  nt  swpra.  The  evidence  against  this  young  girl  was 
most  unsatisfactory,  and  she  was  long  thought  to  have  been  unjustly  con- 
victed (3  Mem.  of  Romilly,  235  ;  Suggestions  for  the  Repression  of  Crime, 
by  M.  D.  Hill,  31),  but  it  was  subsequently  stated  on  good  authority  that 
she  made  a  confession  to  a  minister  of  religion,  who  had  her  confidence 
(see  the  Times  newspaper  of  August  5th,  1857).  It  is  unaccountable 
that  the  statement  should  have  been  withheld,  and  the  public  suffered 
to  remain  for  nearly  half  a  century  under  the  belief  that  she  was  wrong- 
fully executed.  ^  Graves  v.  People,  18  Col.  170. 


388  THE  CAUSE  OF  DEATH. 

the  meal.*  Again  after  the  victim,  had  experienced  unpleasant 
effects  from  eating  the  mid-day  meal,  a  portion  of  the  sus- 
pected food  was  given  to  a  dog,  which  died  in  about  twenty 
minutes  after  eating  the  food,  showing  signs  of  great  suffering.^ 

The  probability  in  such  cases  is  greatly  strengthened  if  the 
violence  of  the  symptoms  has  been  in  proportion  to  the  quan- 
tities of  the  suspected  food  taken  by  the  parties ;  ^  and  on  the 
other  hand,  a  favorable  presumption  is  created,  if  only  one 
member  of  a  family  is  taken  ill  after  partaking  of  food  of 
which  other  members  of  it  have  eaten  with  impunity.* 

The  science  of  chemistry  generally  affords  most  important 
auxiliary  evidence  as  to  the  corpus  delicti  in  the  investigation 
of  cases  of  im]3uted  poisoning.  As  with  regard  to  scientific 
evidence  of  every  other  kind,  the  processes  and  results  of 
chemical  analysis  in  application  to  the  discovery  or  reproduc- 
tion of  poison  are  subordinated  to  the  control  of  those  general 
principles  of  law  which,  in  all  other  cases,  govern  the  admis- 
sibility of  evidence  and  the  estimation  of  its  weight  and  effect : 
indeed,  those  rules  have  received  some  of  their  most  instructive 
illustrations  from  cases  of  this  nature. 

Evidence  of  chemical  tests  applied  to  the  body  or  its  con- 
tents or  excreta,  whenever  it  is  capable  of  being  obtained, 
ought  to  be  adduced,  and  in  such  circumstances  the  failure  to 
adduce  such  evidence,  unexplained  by  satisfactory  reasons, 
gives  serious  ground  for  doubt  as  to  the  reality  of  the  alleged 
poisoning.  The  re-agents  employed  must  be  free  from  all 
impurities  if  any  importance  is  to  be  attached  to  the  result 
obtained. 

A  remarkable  exemplification  of  the  necessity  of  this  cau- 
tion occurred  in  Smethursf s  case,  in  which  Reinsch's  test, 
which  had  previously  been  regarded  as  infallible  in  the  separa- 
tion of  arsenic,  turned  out  to  be  fallacious  when  applied  to 
chlorate  of  potass ;  and,  in  fact,  the  arsenic  which  was  found 
in  the  mixture  had  been  liberated  from  the  copper  gauze 
employed  in  the  experiment.^ 

1  Brown  v.  State,   88  Ga.  257.  «  Bill  i\  Com.,  88  Va.  365, 

8  Rex  V.  Alcorn,  1  Syme's  Just.  Rep.  221, 

*  Rex  V.  Bickle,  Exeter  Summ.  Ass.,  1834,  coram  Mr.  Justice  Patteson. 

6  Reg.  V.  Smethurst,  C.  C.  C.  Sess.  Pap.,  Aug.  1859,  ut  supra.  But  arsenic 
was  also  found  in  an  evacuation  not  complicated  with  the  same  source  of 
fallacy.    See  a  work  on  Ptomaines  and  Leucomames,  by  Vaughan  &  Novy, 


THE  CAUSE  OF  DEATH.  389 

But  some  of  the  vegetable  poisons,  in  the  present  state  of 
science,  are  beyond  the  reach  of  chemical  processes.  The 
offender  himself,  by  his  chemical  knowledge  and  choice  of 
means,  by  the  administration  of  minimum  doses,  or  by  the 
destruction  of  the  portions  of  the  body  containing  the  sus- 
pected matter,  or  by  the  destruction,  dilution,  or  other  tamper- 
ing with  its  excreta  or  contents,  may  have  rendered  detection 
by  the  reproduction  of  the  deadly  agent  impracticable ;  or  the 
absorption  of  the  poison,  or  a  want  of  skill  in  the  experi- 
menter, or  failure  to  employ  the  proper  means,  or  other  cause, 
may  have  rendered  the  necessary  chemical  researches  im- 
practicable, unsatisfactory,  or  inconclusive.^ 

The  concurrence,  moreover,  of  a  plurality  of  characteristic 
tests,  separately  fallacious,  but  fallacious  from  diif erent  causes, 
may,  in  connection  with  strong  moral  facts,  yield  a  result  of 
so  high  a  degree  of  probability  as  to  be  perfectly  convincing, 
though  the  poison  has  not  been  reproduced.^ 

The  subject  of  what  has  been  called  the  j)Ost-mortem  imhi- 
hiiion  of  poisons  has  of  late  years  received  a  great  deal  of 
attention.  It  is  manifest  that  if  a  poison  injected  into  the  body 
after  death  will  diffuse  itself  through  the  body,  and  into  the 
various  organs  into  which  it  finds  its  way,  when  administered 
during  life,  the  presumption  that  would  arise  from  the  de- 
tection of  the  poison  in  the  organs  if  the  poison  could  be 
diffused  only  by  circulation,  that  death  was  the  result  of  the 
administration  of  poison,  would  never  exist.  The  question 
most  frequently  arises  in  cases  of  supposed  arsenical  poisoning, 
for  arsenic,  as  is  well  known,  is  a  constituent  of  the  embalming 
fluids  in  most  common  use.  As  far  back  as  1847  Orfila  ad- 
mitted the  possibility  of  imbibition  being  practised  on  the 
human  body  with  criminal  intent.  But  until  very  recently 
toxicological  writers  have  supposed  the  diffusion  of  poison 
injected  after  death  to  be  of  very  rare  occurrence.  This  was 
the  most  important  question  which  arose  in  the  Millard  trial. 
In  that  case  the  experts  were  asked  in  effect :  "  Granting  that 
white  arsenic  suspended  in  water  was  injected  into  the  mouth 
and  rectum  a  few  hours  after  death,  would  it  diffuse  through 

p.  156,  where  instances  are  mentioned  of  the  common  impunity  of  several 
re-agents. 

^  Rex  V.  Donellan,  Reg.  v.  Smethurst,  ut  supra ;  Reg.  v.  Palmer,  post. 

2  Rex  V.  Elder,  1  Syme's  Jud.  Rep.  71.   And  see  Rex.  v.  Donnall,  iiost. 


390  THE  CAUSE  OF  DEATH 

the  body  to  such  an  extent  that  it  would  be  found  in  the  liver 
and  kidneys  ? "  ^  Dr.  Yaughan,  an  expert  witness  for  the  defence, 
testified  that  "if  within  twenty-four  hours  after  the  death  of 
Mrs,  Millard,  arsenic  to  the  amount  of  one  half  a  teaspoonf  ul  had 
been  injected  into  the  stomach  and  rectum,  and  the  body 
buried,  and  examined  105  days  afterwards,  he  would  expect, 
from  reading  and  experiments,  to  find  arsenic  in  the  liver  from 
that  injected."  Subsequent  experiments  have  proved  "  beyond 
a  doubt,  that  arsenic  may  diffuse  through  a  dead  body,"  *  and 
even  that  the  finding  of  arsenic  in  the  brain  is  no  proof  that  it 
was  administered  during  lifCc' 

"  It  must  be  admitted,"  says  Dr.  Miller,  m  the  article  to 
which  reference  has  just  been  made,  that  "  there  are  only  very 
rare  opportunities  for  the  toxicologist  to  detect  a  discrimi- 
native method  between  ante  and  post-mortem  poisoning.  But 
the  microscopist,  with  his  knowledge  of  the  histological  and 
pathological  appearance  of  organs,  may  perhaps  be  able  to  dis- 
cover, by  rigid  searching  with  his  microscope,  some  permanent 
appreciable  difference ;  for  it  is  not  improbable  that  there  may 
take  place  certain  specific  changes  m  the  histological  constit- 
uents of  an  organ,  due  to  the  deposition  of  a  substance  like 
arsenic,  through  the  medium  of  the  blood  circulation  during 
life,  which  changes  would  not  manifest  themselves  as  the 
result  of  an  after-death  deposition  "  '^     Dr.  Reese,  dealing  with 

1  People  V.  Millard,  53  Mich.  63.  See  also  People  v.  Hall.  48  Mich.  For 
a  valuable  statement  of  the  medico-legal  points  in  the  Millard  case,  see  a 
paper  read  before  the  First  American  International  Medico  Legal  Congress, 
June,  1889,  by  Dr.  Victor  C=  Vaughan. 

^  See  the  paper  above  referred  to,  and  see  a  record  of  experiments  in 
vol.  1  of  the  Journal  of  the  American  Medical  Asso  ,  p   115. 

'  See  an  article  by  Dr,  Geo.  B.  Miller  in  the  Medico-Legal  Journal  for 
March,  1888.  A  recent  case  is  reported  m  vol  13  of  the  Journal  of  the 
American  Chemical  Soc,  p.  283.  A  man  had  died  from  a  disease  diagnosed 
as  remittent  fever.  Two  hours  after  death  the  body  was  embalmed  by 
thrusting  an  embalming  needle  into  the  abdomen  and  injecting  an  embalm- 
ing fluid  which  contained  100  grains  of  arsenic  tri-oxide  and  10  grains  of 
zinc  sulphate  in  each  fluid  ounce  Suspicion  of  poisoning  having  arisen,  the 
coroner  took  charge  of  the  case  and  held  an  autopsy  twenty -four  hours 
after  death.  The  diagnosis  was  confirmed  ;  but  the  brain  was  removed 
and  analyzed.  A  portion  of  it  weighing  1 10  grammes  contained  one  and  six- 
tenths  milligrams  of  arsenic  tn-oxide,  and  a  small  quantity  of  zinc.  It 
was  thus  clear  that  the  arsenic  found  m  the  brain  had  been  deposited  there 
by  the  diffusion  of  the  embalming  fluid. 

*  See  Medico-Legal  Journal,  March,  1888,  p  506. 


THE  CAUSE  OF  DEATH.  391 

the  same  question,^  declared  that  "  there  was  no  known 
method  by  which  such  discrimination  could  be  made,  if  reliance 
was  to  be  had  exclusiveh^  on  the  chemical  analysis  of  the  body, 
since  this  simply  established  the/ac^  of  the  presence  or  absence 
of  the  poison,  but  did  not  necessarily  disclose  its  mode  of  intro- 
duction.^^ At  any  rate,  any  evidence  on  this  point  must  be, 
in  almost  every  case,  largely  speculative,  and  ought  not  to 
receive,  and  in  most  cases  would  not  receive,  much  consider- 
ation at  the  hands  of  a  jury  debatmg  the  existence  or  non- 
existence of  a  heinous  crime.  The  result  of  the  whole  matter 
is,  as  has  been  wisely  pointed  out,^  "  that  the  chemical  evi- 
dence should  not  be  held  in  the  highest  esteem,  and  be  given 
the  place  of  first  importance  in  all  cases." 

By  no  case  is  the  unreliability  of  chemical  evidence  better 
illustrated  than  by  the  Buchanan  case.^  Dr.  Buchanan  was 
charged  with  the  murder  of  his  wife  by  the  administration  of 
morphine.  Prof.  Withaus  claimed  to  have  discovered  mor- 
phine in  the  body  of  the  dead  woman,  which  had  been  buried 
forty- four  days.  He  testified  that  by  the  use  of  certain  chemi- 
cal re-agents  he  obtained  results  indicating  the  presence  of 
morphine.  Dr.  Vaughan,  a  witness  for  the  defence,  testified 
that  he  had  obtained  similar  results  with  an  extract  of  pan- 
creas. 

And  here  may  be  mentioned  another  discovery  of  modern 
science  which  is  of  the  greatest  importance  in  this  connection. 
During  a  trial  for  criminal  poisoning  in  Prussia,  in  1874,  the 
analyst  discovered  a  substance  which  he  claimed  to  be  conine. 
This  was  submitted  to  a  distinguished  toxicologist.  Otto,  who 
pronounced  it  to  be  neither  conine,  nicotine,  nor  any  vegetable 
alkaloid  with  which  he  was  acquainted.  In  another  case, 
from  a  body  slightly  decomposed,  an  alkaloid  was  obtained 
which  in  some  respects  resembled  strychnine.  And  in  the 
Longogua  trial  at  Cremona,  Italy,  a  substance  resembling  mor- 
phine was  found.  It  is  an  important  fact,  which  the  activity 
of  modern  scientific  research  has  revealed,  that  animal  bodies 
during  putrefaction  produce  alkaloidal  substances,  some  of 
which  resemble,  some  by  their  chemical  reaction,  and  others 
by  the  symptoms  they  produce,  vegetable  alkaloids ;  while 

»  Medico-Legal  Journal,  Sept.  1887,  p.  184. 
'  Medico-Legal  Journal,  March,  1888,  506. 
3  Tried  in  New  York  City,  April,  1893. 


392  THE  CAUSE  OF  DEATH. 

others  again  Avhen  present  in  the  same  solution  mark  the  char- 
acteristic reactions  of  vegetable  alkaloids.^ 

In  the  case  of  People  v.  Stephens^  no  attempt  had  been 
made  to  embalm  the  body,  and  an  attempt  was  made  to 
account  for  the  arsenic  found  in  the  body  of  the  deceased, 
which  had  been  buried  for  a  considerable  length  of  time,  by 
the  theory  that  arsenic  in  the  soil  had  reached  the  body  by  the 
action  of  rain  water  percolating  through  the  soil.  But  on 
examination  of  the  coffin,  and  the  nails  therein,  and  of  the  soil 
surrotinding  the  grave,  no  trace  of  arsenic  was  found.  It  has 
been  since  demonstrated  that,  even  when  arsenic  is  present  in 
the  soil,  a  body  cannot  absorb  the  poisonous  substance,  for  the 
arsenic  becomes  fixed  in  the  soil  and  is  insoluble.^  In  the 
Millard  case  an  attempt  was  made  by  the  prosecution  to 
detect  arsenic  in  the  soil  on  to  which  the  matter  vomited  by 
the  deceased  had  been  thrown.  Finding  no  arsenic,  the  prose- 
cution claimed  that  it  had  been  washed  deeper  into  the  earth, 
and  distributed  in  every  direction.  The  defence  contended  for 
the  fixation  of  arsenic  in  the  soil,  which  has  since  been  experi- 
mentally demonstrated.* 

It  would  be  most  unreasonable,  therefore,  and  lead  to  the 
grossest  injustice,  and  in  some  circumstances  to  immunity  of 
the  worst  of  crimes,  to  require,  as  an  imperative  rule  of  law, 
that  the  fact  of  poisoning  shall  be  proved  by  any  special  and 
exclusive  medium  of  proof,  when  that  kind  of  proof  is  unattain- 
able, and  especially  if  it  has  been  rendered  so  by  the  act  of 
the  offender  himself.  No  universal  and  invariable  rule,  there- 
fore, can  be  laid  down ;  and  evefy  case  must  depend  upon  its 
own  particular  circumstances ;  and,  as  in  all  other  cases,  the 
corpus  delicti  must  be  proved  by  the  best  evidence  which  is 
capable  of  being  adduced,  and  such  an  amount  and  cottibina- 
tion  of  relevant  facts,  whether  direct  or  circumstantial,  as 
establish  the  imputed  guilt  to  a  moral  certainty,  and  to  the  ex- 
clusion of  every  other  reasonable  hypothesis.  It  was  held  in  a 
recent  case  that  neither  chemical  analysis  nor  an  autopsy  was 
absolutely  necessary.^    And  where  the  accused  was  charged 

1  See  on  this  subject,  Vaughan  &  Novy  on  Ptomaines  and  Leucomaines, 
especially  at  p.  174  et  seq.,  a  work  which  I  have  freely  coHsttlted. 

2  4  Park.  C.  C.  396.     And  see  1  Crim.  L.  Mag.  295. 

3  Comptes  Rendus,  100,  1889. 

*  See  Paper  read  before  First  Am.  International  Medico-Legal  Congress, 
by  Dr.  Vaughan.  s  Poik  v.  State,  36  Ark.  117. 


THE  CAUSE  OF  DEATH.  393 

with  having  caused  the  death  of  the  deceased  by  inducing  him 
to  di'ink  from  a  bottle  represented  as  containing  whisk}^,  but 
which  was  supposed  to  contain  a  poisonous  mixture,  a  convic- 
tion was  had  though  there  was  no  post-mortem  examination 
of  the  body  of  the  deceased,  nor  any  analysis  of  the  contents 
of  the  bottle.  1 

In  TavjeWs  case  it  was  strenuously  urged  by  the  counsel  for 
the  prisoner  that  it  was  a  rule  of  law  that  there  ought  to  be 
positive  proof  of  the  mode  of  death,  and  that  such  a  quantity 
of  poison  was  found  in  the  body  of  the  deceased  as  would 
necessarily  occasion  death.  But  this  doctrine  was  peremptorily 
repudiated  by  Mr,  Baron  Parke,  who  told  the  jury,  that  "  if 
the  evidence  satisfied  them  that  the  death  was  occasioned  by 
poison,  and  that  that  poison  was  administered  by  the  prisoner, 
if  that,"  said  his  lordship,  "  is  proved  by  circumstantial  evi- 
dence, it  is  not  necessary  to  give  direct  and  positive  proof  what 
is  the  quantity  which  would  destroy  life,  nor  is  it  necessary  to 
prove  that  such  a  quantity  was  found  in  the  body  of  the  de- 
ceased, if  the  other  facts  lead  you  to  the  conclusion  that  the 
death  was  occasioned  by  poison,  and  that  it  was  knowingly 
administered  by  the  prisoner.  You  must  take  this  fact,  just 
the  same  as  all  the  other  parts  of  the  case,  and  see  if  you  are 
satisfied,  as  reasonable  men,  whether  the  prisoner  is  guilty  or 
not.  The  only  fact  which  the  law  requires  to  be  proved  by 
direct  and  positive  evidence  is  the  death  of  the  party,  by  find- 
ing the  body;  or  when  such  proof  is  absolutely  impossible,  by 
circumstantial  evidence  leading  closely  to  that  result,  as  where 
a  body  was  thrown  overboard  far  from  land,  when  it  is  quite 
enough  to  prove  that  fact  without  producing  the  body." 
His  lordship,  in  a  subsequent  part  of  his  charge,  said, 
"  There  is  very  reasonable  evidence,  supposing  that  to  be  re- 
quired which  I  tell  you  is  not,  that  the  quantity  of  prussic  acid 
in  the  stomach  amounted  to  one  grain ;  and  although  that  is 
not  necessary  to  be  proved,  the  scientific  evidence  shows  that 
one  grain  may  be  enough  to  destroy  life."  In  reference  to  the 
argument  urged  by  the  prisoner's  counsel,  that  the  deceased 
might  have  died  from  some  sudden  emotion,  the  learned  judge 
said  that  it  was  within  the  range  of  possibility  that  a  per- 
son might  so  die  without  leaving  any  trace  on  the  brain  ;  they 

1  Hatchett  v.  Com.,  76  Va.  1026. 


394  THE  CAUSE  OF  DEATH. 

were  to  judge  whether  they  could  attribute  death  to  that  cause, 
if  they  found  strong  evidence  of  the  presence  of  poison ;  be- 
cause they  were  not  to  have  recourse  to  mere  conjecture  ;  that, 
where  the  result  of  the  evidence  gave  them  the  existence  of  a 
cause  to  which  it  might  be  rationall}^  attributed,  they  were  not 
to  suppose  it  was  to  be  attributed  to  any  other  cause. 

In  a  recent  case,  where  the  defendant  was  convicted  of  the 
murder  of  his  wife  by  placing  an  arsenical  poison — "  Rough  on 
Rats  " — in  the  flour  which  was  used  by  her  in  the  preparation  of 
a  meal  for  herself  and  family,  there  was  evidence  of  an  analysis 
of  bread  and  flour  found  by  a  witness  in  the  house  of  the  de- 
ceased the  day  after  her  death,  and  of  the  finding  of  arsenic  in 
such  bread,  and  also  in  the  stomach  of  the  deceased.  But  the 
jury  were  instructed  that,  before  they  could  consider  the  testi- 
mony of  the  experts  as  to  the  analysis  of  the  bread  and  flour, 
they  must  be  satisfied  beyond  a  reasonal  doubt  that  the  bread 
and  flour  analyzed  were  parts  of  the  same  of  which  the  de- 
ceased ate.^ 

Lord  Campbell,  in  Palmer's  case,  said  that  it  was  not  to  be 
expected  that  witnesses  should  be  called  to  state  that  they  saw 
the  deadly  poison  administered  by  the  prisoner,  or  mixed  up 
by  the  prisoner  openly  before  them.  Circumstantial  evidence 
as  to  that,  continued  the  learned  judge,  is  all  that  can  be 
reasonably  expected  ;  and  if  there  were  a  series  of  circum 
stances  leading  to  the  conclusion  of  guilt,  a  verdict  of  guilty 
might  satisfactorily  be  pronounced.  AVith  respect  to  the  con- 
sideration that  no  strychnia  was  found  in  the  body,  it  was  for 
them  to  consider,  but  there  was  no  rule  of  law  according  to 
which  the  poison  must  be  found  in  the  body  of  the  deceased, 
and  all  that  they  knew  respecting  the  poison  not  being  in  the 
body  was,  that  in  that  part  of  the  body  that  was  analyzed  by 
the  witnesses  no  strychnia  had  been  found.  And  in  a  late  case 
in  Virginia  it  was  held  not  to  be  absolutely  necessary  that 
poison  be  found  in  the  body  of  the  deceased,  for  the  reason 
that  some  poisons  may  be  given  in  a  quantity  sufficient  to  pro- 
duce death  >vithout  leaving  a  trace  to  be  discovered  in  the  body.* 

1  State  V.  Best  (N.  C),  15  S.  E.  930. 
9  Hatchett  v.  Com.,  76  Va.  1036. 


CHAPTER  II. 

THE  ADMINISTRATION  OF  THE  POISON. 


Section  I. 
Possession  of  Poison  hy  the  Accused. 

It  is  in  the  next  place  necessary  to  establish  that  the  poison 
was  administered  by  the  prisoner.^  The  probability  of  any 
other  means  must  be  excluded. 

It  is  common  for  the  defence,  in  cases  of  this  kind,  to  set  up 
the  theory  of  suicide.  An  illustration  of  this  course  is  to  be 
found  in  the  case  of  Madeleine  Smith?  And  wherever  the 
facts  give  a  color  of  probability  to  the  claim,  it  may  be  said  on 
behalf  of  the  defence  that  the  deceased,  having  been  in  the 
habit  of  taking  the  particular  poison  specified  as  the  cause  of 
death,  had  perished  as  a  result  of  inadvertence  in  taking  a 
larger  dose  than  usual.  In  a  late  case  the  defence  having 
offered  to  prove  that  at  a  former  time,  ten  years  before  her*  death, 
the  deceased  was  accustomed  to  take  arsenic,  and  that  she  had 
told  a  witness  that  she  was  obliged  to  take  it  for  her  health, 
the  court  would  not  admit  this,  unless  it  were  to  be  followed 
by  other  evidence  bringing  the  habit  down  to  a  reasonable  time 
time  before  death.^ 

The  possession  of  poisonous  matter  by  the  party  charged 
with  the  administration  of  it,  is  always  an  important  fact. 
When  death  has  been  caused  by  poison  of  the  same  kind,  and 
no  satisfactory  explanation  of  that  fact  is  given  by  the  accused 
or  suggested  by  the  surrounding  circumstances,  a  strong  infer- 

1  Hatchett  v.  Com. ,  76  Va.  1026.  a  See  infra,  401  et  seq. 

8  Goersen  v.  Com.,  106  Pa.  St.  477. 

395 


396  THE  ADMINISTRATION  OF  THE  POISON. 

ence  of  guilt  may  be  created  against  the  accused  ;  especially  if 
he  has  attempted  to  account  for  such  possession  by  false  state- 
ments. On  the  trial  of  Mary  Hartung  for  the  murder  of  her 
husband,  it  appeared  that  about  two  days  before  the  death  of 
the  deceased,  the  accused  had  bought  arsenic  on  the  pretence 
of  wanting  it  for  one  who  wished  to  stufiF  birds.  This  excuse 
was  shown  to  be  false.^  In  Palmer^ s  case,  Lord  Chief  Justice 
Campbell  said  that  if  the  jury  should  come  to  the  conclusion 
that  the  symptoms  which  the  deceased  had  exhibited  were  con- 
sistent with  strychnia,  a  fearful  case  was  made  out  against  the 
prisoner,  "  I  have  listened,"  said  the  learned  judge,  "  with 
the  most  anxious  attention,  to  know  what  explanation  would 
be  given  respecting  the  strychnia  that  has  been  purchased  by 
the  prisoner.  There  is  no  evidence  of  the  intention  with  which 
it  was  purchased,  there  is  no  evidence  how  it  was  applied,  what 
became  of  it,  or  w^hat  was  done  with  it,"  ^  In  Stejyheiih  case  ^  the 
prisoner  had  purchased  half  an  ounce  of  arsenic— the  poisonous 
agrent— about  six  weeks  before  the  wife's  death  ;  and  a  like 
quantity  a  short  time  later,  and  before  death.  Some  relatives 
testified  that  the  accused  had  purchased  the  poison  for  them, 
to  be  used  in  killing  vermin ;  but  very  little  weight  was 
attached  to  this  explanation,  the  judge  in  his  charge  calling 
attention  to  the  fact  that  it  was  testified  to  by  relatives  of  the 
prisoner,  who  might  be  supposed  to  strain  every  point  to  save 
the  life  of  the  prisoner  and  to  ward  off  ignominy  from  the 
family,  at  the  same  time  telling  the  jury  that  the  importance 
of  the  explanation  was  for  them  to  determine.  Other  circum- 
stances were  conclusive.  It  was  shown  in  another  case  that  a 
few  days  before  the  commission  of  the  alleged  crime,  the 
prisoner  had  moved  from  a  house,  and  that  the  new  occupant 
had  found  on  a  ledge  over  the  door  a  white  substance  which 
he  had  handed  to  the  prisoner,  who  said  that  it  was  "  rat 
poison,"  and  took  it  away  with  her.*  In  the  case  of  Cojn.  v. 
Robinson^  the  prosecution  was  unable  to  prove  clearly  actual 
possession  of  the  poison  by  the  prisoner.  The  defence  were 
not  slow  to  see  the  advantage  thus  given  them,  and  the  pris- 
oner was  put  on  the  stand  and  swore  that  she  had  never  seen 

1  People  V.  Hartung,  4  Park.  Cr.  R.  256. 

'  See  Report  of  this  case  at  p.  313.  ^  People  v.  Stephens,  infra. 

♦  Brown  v.  State,  88  Ga.  257. 

<>  Tried  in  Boston,  Dec.  1887  and  Feb.  1888. 


THE  ADMINISTRATION  OF  THE  POISON.  397 

arsenic — the  drug  whicli  produced  death — in  her  hfe,  and  that 
she  was,  indeed,  unable  to  say  whether  it  was  a  powder  or  a 
)  iquid.^ 


Section  II. 
Opportunity  Must  he  Shown. 

Not  only  must  it  appear  that  the  accused  possessed  the 
deadly  agent,  but  it  is  indispensable  to  show  that  he  had  the 
opportunity  of  administering  it.^  Stepfiens  was  on  nearly  all 
occasions  in  the  room  with  his  wife  alone,  during  the  latter's 
last  illness,  and  administered  to  her  food  and  drinks.^  Where 
several  members  of  a  family  were  taken  sick  after  eating  of 
food  supposed  to  have  been  tampered  with  by  the  prisoner,  a  dis- 
charged servant,  it  was  shown  that  the  flour  for  the  morning 
meal  had  been  got  out,  as  was  the  custom,  the  night  before 
and  placed  on  a  table  in  the  kitchen.  The  prisoner  was  known 
to  have  passed  through  the  kitchen  after  this  had  been  done, 
and  when  no  one  else  was  there,  carrying  a  cup  and  towel,  which 
she  said  she  was  returning  to  one  of  the  members  of  the  family 
to  whom  the  articles  belonged.* 

No  difficulty  will  be  experienced  in  proving  the  opportunity 
where  the  accused  was  the  medical  adviser  or  attendant  phy- 
sician of  the  deceased.  This  was  Dr.  Lamson's  case.  In  this 
case  the  prisoner  had,  on  various  occasions,  sent  medicine  to 
the  deceased,  and,  on  the  night  of  the  deceased's  death,  had 
visited  him  and  given  him  some  powders  which  the  deceased 
actually  took.^ 

James  Hall  was  convicted  of  an  attempt  to  murder  his  wife 

1  It  is  interesting  to  note  here  that,  a  short  time  after  this  trial,  it  was 
published  as  a  fact  that  on  cleaning  out  and  remodelling  the  house  formerly 
occupied  by  Mrs.  Robinson,  a  package  of  "  Rough  on  Rats"— an  arsenical 
poison— was  found  beliind  the  bricks  of  the  furnace.  This,  if  true,  would 
supply  tlie  missing  evidence,  and  clear  away  all  doubt  as  to  the  propriety 
of  the  verdict.     See  Medico-Lejjal  Journal.  Dec.  1888,  p.  303. 

See  further,  in  illustration  of  this  point,  Com.  v.  Hobbs.  140  Mass.  443. 

'^  An  interesting  case  is  tliat  of  Madame  Joniaux  commented  on,  with  a 
summary  of  the  facts,  in  51  Alb.  L.  J.  114. 

3  People  V.  Stephens,  infra.  «  Brown  v.  State,  88  Ga.  257. 

5  See  The  Lancet,  London,  Eng.,  March  18,  1882,  p.  455. 


398  THE  ADMINISTRATION  OF  THE  POISON, 

by  poison.  The  evidence  showed  that  the  prisoner  and  his 
wife  had  been  married  nineteen  years  and  had  four  children. 
For  several  years  all  marital  relations  had  ceased  between 
them.  They  had  been  at  enmity  for  a  considerable  time,  and 
the  prisoner  had  once  abandoned  his  family  and  remained  away 
from  them  for  about  a  year.  At  the  end  of  that  time  the  family 
came  to  him,  and  thereafter  they  lived  under  one  roof.  But 
during  this  time  the  wife  occasionally  spoke  of  leaving  her 
husband  altogether,  and  he,  on  his  part,  charged  her  with 
unchastity.  At  this  time,  too,  the  prisoner  had  conceived  a 
violent  passion  for  a  young  woman  in  the  neighborhood,  and 
had  openly  declared  his  attachment  for  her.  On  the  day 
when  the  attempt  on  the  life  of  his  wife  was  alleged  to  have 
been  made  the  following  event  occurred.  The  wife,  being  ab- 
sent from  home,  dinner  was  prepared  by  one  of  the  daughters, 
who,  at  the  usual  hour,  called  in  the  prisoner  and  the  other 
three  children.  While  dinner  was  in  progress  the  wife,  who 
had  gone  to  the  house  of  a  neighbor  to  borrow  a  pattern  to 
make  some  garment,  returned,  and  went  into  an  adjoining 
room  to  iron  out  the  pattern.  The  children  having  finished 
their  dinner,  all  came  into  the  room  where  the^  mother  was, 
leaving  the  prisoner  sitting  at  the  table.  The  wife  coming 
presently  into  the  room  to  eat  her  dinner,  the  prisoner  arose 
from  the  table  and  went  to  the  stove,  and  brought  some  bread 
therefrom  and  handed  it  to  his  wife,  and  then  seated  himself  be- 
side the  stove,  and  put  his  feet  into  the  oven.  The  wife,  having 
taken  gravy  from  a  bowl  on  the  table  and  mixed  it  with  bread, 
began  to  eat,  but  at  the  first  mouthful  cried  out,  "  This  is  awful 
bitter,"  and  ran  to  the  door  and  spat  out  what  she  had  in  her 
mouth.  The  children  having  come  out  into  the  room,  the  son 
took  some  white  particles  on  the  surface  of  the  gravy  and 
tasted  them  and  said  they  were  bitter.  The  gravy  was  then 
given  to  a  dog,  who  ate  it  and  presently  manifested  symptoms 
of  great  suffering.  A  doctor  was  sent  for,  and  when  he  ar- 
rived, finding  the  wife  showing  symptoms  of  strychnine  poison- 
ing, gave  her  sweet  milk  as  an  antidote.  The  prisoner  had  up 
to  this  taken  no  part  in  what  was  going  on,  but  now  said  : 
"  If  sweet  milk  is  good  for  her,  give  me  some  for  the  dog."  In 
about  twenty  minutes  the  dog  died.  The  prisoner  on  being 
questioned  about  the  poison  said  that  he  could  not  have  gotten 
it  from  a  store  without  giving  his  name,  and  having  that  and 


THE  ADMINISTRATION  OF  THE  POISON.  399 

the  quantity  and  the  date  recorded,  and  gave  no  other  explana- 
tion.i 

It  will  be  seen  that  while  the  accused  was  sitting  alone  in 
the  eating-room  he  had  abundant  opportunity  to  place  the 
poison  in  the  food  of  which  his  wife  was  to  partake.  It  was  a 
circumstance  much  commented  on  at  the  trial  that,  on  his  wife's 
entering  the  room  to  eat  her  meal,  the  accused,  who  had  been 
living  on  terms  of  enmity  with  her,  arose  and  gave  her  bread. 
The  accused  was  a  laborer,  and  it  was  also  a  fact  worth  notic- 
ing; that  he  knew  of  the  conditions  with  which  he  would  have 
to  comply  before  the  poisonous  cb-ug  would  be  sold  to  him. 
It  was  well  asked,  "  H(^w  did  he  acquire  this  information  ? " 

Upon  the  effect  ot  these  heads  of  evidence,  and  upon  the 
caution  with  which  they  ought  to  be  received,  some  valuable 
observations  were  made  by  Mr.  Baron  Rolfe  in  a  case  before 
him.  The  prisoner  was  indicted  for  the  murder  of  his  wife, 
who  was  taken  ill  on  the  morning  of  the  25th  of  November, 
and  died  two  days  afterwards  with  symptoms  resembling  those 
of  an  irritant  poison.  Poisoning  not  having  been  suspected, 
the  body  was  interred  without  examination  :  but  suspicions 
having  afterwards  arisen,  it  was  exhumed  in  the  month  of 
June  following,  and  a  large  quantity  of  arsenic  was  discovered 
in  the  stomach.  Several  weeks  after  the  apprehension  of  the 
prisoner,  the  police  took  possession  of  some  of  his  garments, 
which  were  found  hanging  up  in  his  lodgings,  in  the  pockets 
of  which  arsenic  was  found.  In  his  address  to  the  jury,  Mr. 
Baron  Rolfe  said,  "  Had  the  prisoner  the  opportunity  of  ad- 
ministering poison  ?  that  was  one  thing.  Had  he  any  motive 
to  do  so  ?  that  Avas  another.  There  was  also  another  question, 
which  was  most  important ;  it  was  whether  the  party  who 
had  the  opportunity  of  administering  poison  had  poison  to  ad- 
minister ?  If  he  had  not  the  poison,  the  having  the  oppor- 
tunity became  unimportant.  If  he  had  the  poison,  then  another 
question  arose,  did  he  get  it  under  circumstances  to  show  that 
it  was  for  a  guilty  or  improper  object  ?  The  evidence  by 
which  it  was  attempted  to  trace  poison  to  the  possession  of  the 
prisoner  was,  that  on  a  certain  occasion,  after  the  death  of  the 
wife,  and  after  he  himself  was  apprehended,  the  contents  of 
the  pockets  of  a  coat,  waistcoat,  and  trousers,  on  being  tested 

1  Bell  V.  Com.,  88  Va.  365.  This  statement  of  facts  is  condensed  fi'om 
the  official  report. 


400  THE  ADMINISTRATION  OF  THE  POISON. 

by  the  medical  witnesses,  were  found  to  contain  arsenic ;  and 
that,  a  week  afterwards,  another  Avaistcoat  which  came  into 
the  possession  of  the  policeman,  on  being  examined,  was  also 
found  to  contain  arsenic.  Did  that  bring  home  to  the  prisoner 
the  fact  that  he  had  arsenic  in  his  possession  in  November  ? 
It  was  not  conclusive  that,  because  he  had  it  in  June,  he  had 
it  in  November.  He  (the  learned  judge)  inferred  from  what 
had  been  stated  by  the  medical  men,  that  the  quantity  of 
arsenic  found  in  the  pockets  of  the  clothes  was  very  small. 
Now,  if  he  had  it  in  a  larger  quantity  in  November,  and  it 
had  been  used  for  some  purpose,  being  a  mineral  substance, 
such  particles  were  likely  to  remain  in  the  pockets,  and  find- 
ing it  there  in  June  Avas  certainly  evidence  that  it  might  have 
been  there  in  larger  quantity  in  November  ;  but  obviously,  by 
no  means  conclusive,  as  it  might  have  been  put  in  afterwards. 
But  connected  with  the  arsenic  being  found  in  the  clothes, 
there  were  other  considerations  which  he  tho.ught  were  worthy 
to  be  attended  to.  The  prisoner  was  apprehended  on  the  9th 
of  June,  and  he  knew  long  before  that  time  that  an  inquiry 
was  going  on.  He  was  taken  up,  not  in  the  clothes  in  which 
the  arsenic  was  found  ;  and  a  fortnight  afterwards  a  batch  of 
clothes  was  given  up  in  which  arsenic  was  detected.  Now,  if 
arsenic  had  been  found  in  the  clothes  he  was  wearing,  it  would 
be  perfectly  certain,  in  the  ordinary  sense,  that  he  had  arsenic 
in  his  possession.  But  it  was  going  a  step  further  to  say  that 
because  arsenic  was  discovered  in  clothes  of  his,  accessible  to 
so  many  people  between  the  time  of  his  apprehension  and  their 
being  given  up,  it  was  there  when  he  was  apprehended  ;  in  all 
probability,  he  thought,  it  was,  but  that  was  by  no  means  the 
necessary  consequence.  That  observation  was  entitled  to  still 
more  weight,  with  regard  to  the  waistcoat  last  given  up  to  the 
police,  because  it  was  not  given  up  till  three  weeks  after  the 
prisoner  was  apprehended,  and  had  been  hanging  in  the 
kitchen,  accessible  to  a  variety  of  persons.  ...  It  was  urged 
also  that  arsenic  was  used  for  cattle.  It  might  be  so,  and  it 
might  be  that  the  prisoner  might  innocently  have  had  arsenic. 
The  circumstance  of  there  being  arsenic  in  so  many  pockets 
ought  not  to  be  lost  sight  of,  for  it  could  scarcely  be  conceived 
that  a  guilty  person  should  be  so  utterly  reckless  as  to  put  the 
poison  he  used  into  every  pocket  he  had.  One  would  have 
thought  that  he  would  have  kept  it  concealed,  or  put  it  only 


THE  ADMINISTRATION  OF  THE  POISON.  401 

ill  some  safe  place  for  the  immediate  pm'pose  of  being  used  ; 
and  it  was  worthy  of  observation  that  it  did  not  appear  to 
have  been  put  into  the  clothes  in  such  a  way  as  it  would  have 
been  put  had  the  prisoner  been  desirous  to  conceal  it.  The 
prisoner  was  acquitted.  ^ 

In  a  case  of  the  deepest  interest,  before  the  High  Court  of 
Justiciary  at  Edinburgh,  a  question  whether  or  not  the  prisoner 
had  the  opportunity  of  administering  arsenic  to  the  deceased 
was  the  turning-point  of  the  case.  The  prisoner,  a  young  girl 
of  nineteen,  was  tried  upon  an  indictment  charging  her,  in  ac- 
cordance with  the  law  of  Scotland,  with  the  administration  to 
the  same  person  of  arsenic,  with  intent  to  murder,  on  two 
several  occasions  in  the  month  of  February,  and  with  his  murder 
by  the  same  means  on  the  22d  of  March  following.  She  had 
returned  home  from  a  boarding-school  in  1853,  and  in  the  fol- 
lowing year  formed  a  clandestine  connection  with  a  foreigner 
of  inferior  position,  named  L'Angelier,  whose  addresses  had 
been  forbidden  by  her  parents,  which  early  in  1856  became  of 
a  cruninal  character,  as  was  shown  by  her  letters.  In  the 
month  of  December  following,  another  suitor  appeared,  whose 
addresses  were  accepted  by  her  with  the  consent  of  her  parents, 
and  arrangements  were  made  for  their  marriage  in  June. 
During  the  earUer  part  of  this  engagement,  the  prisoner  kept 
up  her  interviews  and  correspondence  with  L'Angelier  ;  but  the 
correspondence  gradually  became  cooler,  and  she  expressed  to 
him  her  determination  to  break  off  the  connection,  and  implored 
him  to  return  her  letters  ;  but  this  he  refused  to  do,  and  declared 
that  she  should  marry  no  other  person  while  he  lived.  After 
the  failure  of  her  efforts  to  obtain  the  return  of  her  letters,  she 
resumed  in  her  correspondence  her  former  tone  of  passionate 
affection,  assuring  him  that  she  would  marry  him  and  no  one 
else,  and  denying  that  there  was  any  truth  in  the  rumors  of 
her  connection  with  another.  She  appointed  a  meeting  on  the 
night  of  the  19th  February,  at  her  father's  house,  where  she 
was  in  the  habit  of  receiving  his  \dsits,  after  the  family  had  re- 
tired to  rest,  telling  him  that  she  wished  to  have  back  her 
"  cool  letters,"  apparently  with  the  intention  of  inducing  him 
to  believe  that  she  remained  constant  in  her  attachment  to  him. 
In  the  middle  of  the  niorht  after  that  interview,  at  which  he  had 
taken  coffee  prepared  by  the  prisoner,  L'Angelier  was  seized 

1  Reg.  V.  Graham,  Carlisle  Sum.  Ass.,  1845. 
26 


402  THE  ADMINISTRATION  OF  THE  POISON. 

"with  alarming  illness,  the  symptoms  of  which  were  similar  to 
those  of  poisoning  by  arsenic.  There  was  no  evidence  that  the 
prisoner  possessed  arsenic  at  that  time,  but  on  the  21st  she 
purchased  a  large  quantity,  professedly  for  the  purpose  of 
poisoning  rats,  an  excuse  for  which  there  was  no  pretence.  On 
the  night  of  the  22d,  L'Angelier  again  visited  the  prisoner,  and 
about  eleven  o'clock  on  the  following  day  was  seized  with  the 
same  alarming  symptoms  as  before ;  and  on  this  occasion  also 
he  had  taken  cocoa  from  the  hands  of  the  prisoner.  After  this 
attack  L'Angelier  continued  extremely  ill,  and  was  advised  to 
go  from  home  for  the  recovery  of  his  health. 

On  the  6th  of  March  the  prisoner  a  second  time  bought 
arsenic ;  and  on  the  same  day  she  went  with  her  family  to  the 
Bridge  of  Allan  (where  she  was  visited  by  her  accepted  lover), 
and  remained  till  the  17th,  when  they  returned  to  Glasgow. 
On  the  day  before  her  departure  for  the  Bridge  of  Allan,  L'An- 
gelier wrote  a  letter  to  her,  in  which  he  reproached  her  for  the 
manner  in  which  she  had  evaded  answering  the  questions  which 
he  had  put  to  her  in  a  former  letter  respecting  her  rumored  en- 
gagement "svith  another  person,  expressed  his  conviction  that 
there  was  foundation  for  the  report,  and  after  repeating  his  in- 
quiries threatened,  if  she  again  evaded  them,  to  try  some  other 
means  of  coming  at  the  truth.  To  this  letter  the  prisoner, 
although  she  had  been  engaged  nearly  two  months,  and  was 
receiving  the  visits  of  her  affianced  at  the  Bridge  of  Allan,  from 
which  place  she  wrote,  replied  that  there  was  no  foundation  for 
the  report,  and  that  she  would  answer  all  his  questions  when 
they  met,  and  informed  him  of  her  expected  return  to  Glasgow 
on  the  ITth  of  March.  L'Angelier,  pursuant  to  medical  advice, 
on  the  10th  of  March  went  to  Edinburgh,  leaving  directions  for 
the  transmission  of  his  letters,  and  having  become  much  better, 
left  that  place  on  the  19th  for  the  Bridge  of  Allan.  During 
this  interval,  namely,  on  the  iTth,  he  returned  to  his  lodgings 
at  Glasgow,  and  inquired  anxiously  of  his  landlady  if  there 
was  no  letter  waiting  for  him,  as  the  prisoner's  family  were  to 
be  at  home  on  that  day,  and  she  Avas  to  write  to  fix  another  in- 
terview. He  left  Glasgow  again  on  Thursday,  the  19th,  for  the 
Bridge  of  Allan,  leaving  directions  as  before  for  the  trans- 
mission to  him  of  any  letter  which  might  come  for  him  during 
his  absence.  On  the  18th  of  March  the  prisoner  a  third  time 
purchased  a  large  quantity  of  arsenic,  alleging,  as  before,  that 


THE  ADMINISTRATION  OF  THE  POISON.  403 

it  was  for  the  purpose  of  killing  rats.  A  letter  from  the  prisoner 
to  L'Angelier  came  to  his  lodgings  on  Saturday,  the  21st,  from 
the  date  and  contents  of  which  it  appeared  that  she  had  written 
a  letter  appointing  to  see  him  on  the  19th ;  he  had  not,  how- 
ever,  received  it  in  time  to  enable  him  to  keep  her  appointment. 
In  that  letter  she  urged  him  to  come  to  see  her,  and  added : 
"  I  waited  and  waited  for  3'ou',  but  you  came  not.  I  shall  wait 
again  to-morrow  night,  same  time  and  arrangement."  This 
letter  was  immediately  transmitted  to  L'Angelier,  and  in  con- 
sequence he  returned  to  his  lodgings  at  Glasgow  about  eight 
o'clock  on  the  evening  of  Sunday,  the  22d,  in  high  spirits  and 
improved  health,  having  travelled  a  considerable  distance  by 
railway,  and  walked  fifteen  miles.  He  left  his  lodgings  about 
nine  o'clock,  and  was  seen  going  leisurely  in  the  direction  of 
the  prisoner's  house,  and  about  tAventy  minutes  past  nine  he 
called  at  the  house  of  an  acquaintance  who  lived  about  four  or  five 
minutes'  walk  from  the  prisoner's  residence.  After  leaving  his 
friend's  house,  all  trace  of  him  was  lost,  until  two  o'clock  in  the 
morning,  when  he  was  found  at  the  door  of  his  lodgings,  unable 
to  open  the  latch,  doubled  up  and  speechless  from  pain  and 
exhaustion,  and  about  eleven  o'clock  the  same  morning  he  died, 
from  the  effects  of  arsenic,  of  which  an  enormous  quantity  was 
found  in  his  body.  The  prisoner  stated  in  her  declaration  that 
she  had  been  in  the  habit  of  using  arsenic  as  a  cosmetic,  and 
denied  that  she  had  seen  the  deceased  on  that  eventful  night : 
whether  she  had  done  so  or  not  was  the  all-momentous  ques- 
tion. As  there  was  no  evidence  that  the  prisoner  possessed 
poison  at  the  time  of  the  first  illness,  nor  any  analysis  made  of 
the  matter  ejected  on  either  the  first  or  second  illness,  the 
learned  Lord  Justice  Clerk  Cockburn  said  that  there  was  no 
proof  of  the  administration  of  poison  on  either  of  those  occa- 
sions ;  that  the  first  charge,  therefore,  had  entirely  failed,  and 
that  it  was  safer  not  to  hold  that  the  second  illness  was  caused 
by  poison.  As  to  the  principal  charge  of  murder,  his  lordship 
said,  "  Supposing  the  jury  were  quite  satisfied  that  the  prison- 
er's letter  brought  L'Angelier  again  into  Glasgow,  were  they  in 
a  situation  to  say,  with  satisfaction  to  their  consciences,  that  as 
an  inevitable  and  just  result  from  this,  they  could  find  it  proved 
that  the  prisoner  and  deceased  had  met  that  night  ?  that  was 
the  point  in  the  case.  But  it  is  for  you  to  say  here,  whether  it 
has  been  proved  that  L'Angelier  was  in  the  house  that  night. 


404  THE  ADMINISTRATION  OF  THE  POI.SON. 

If  you  can  hold  that  that  link  in  the  chain  is  supplied  by  just 
and  satisfactory  inference — remember  that  1  say,  just  and  satis- 
factory— and  it  is  for  you  to  say  whether  the  inference  is  satis- 
factory and  just,  in  order  to  complete  the  proof,  if  you  really 
feel  that  you  may  have  the  strongest  suspicion  that  he  saw  her, 
for  really  no  one  need  hesitate  to  say  that,  as  a  matter  of  moral 
opinion,  the  whole  probabilities  of  the  case  are  in  favor  of  it, 
but  if  that  is  all  the  amount  that  you  can  derive  from  the  evi 
dence,  the  link  still  remains  wanting  in  the  chain,  the  catastrophe 
and  the  alleged  cause  of  it  are  not  found  linked  together.  And 
therefore  you  must  be  satisfied  that  you  can  here  stand  and  rely 
upon  the  firm  foundation,  I  say,  of  a  just  and  sound,  and  per 
haps  I  may  add,  inevitable  inference.  That  a  jury  is  entitled 
often  to  draw  such  an  inference  there  is  no  doubt,  ...  If  you 
find  this  to  be  a  satisfactory  and  just  inference,  I  cannot  tell 
you  that  you  are  not  at  liberty  to  act  upon  it,  because  most  of 
the  matters  occurring  in  life  must  depend  upon  circumstantial 
evidence,  and  upon  the  inferences  which  a  jury  may  feel  bound 
to  draw\  But  it  is  an  inference  of  a  very  serious  character;  it 
is  an  inference  upon  which  the  death  of  this  party  by  the  hand 
of  the  prisoner  really  must  depend.  And  then,  you  will  take 
all  the  other  circumstances  of  the  case  into  your  consideration, 
and  see  whether  you  can  infer  from  them  that  they  met.  If  you 
think  they  met  together  that  night,  and  he  was  seized  and  taken 
ill,  and  died  of  arsenic,  the  symptoms  beginning  shortly  after 
the  time  he  left  her,  it  will  be  for  you  to  say,  Avhetber  in  that 
case  there  is  any  doubt  as  to  whose  hand  administered  the 
poison."  In  another  part  of  his  charge  the  learned  jutlgesaid  : 
"  In  the  ordinary  matters  of  life,  when  you  find  the  man  came 
to  town  for  the  purpose  of  getting  a  meeting,  you  may  come 
to  the  conclusion  that  they  did  meet ;  but,  observe  that  becomes 
a  very  serious  inference  indeed  to  draw  in  a  case  where  you 
are  led  to  suppose  that  there  was  an  administration  of  poison 
and  death  resulting  therefrom.  It  may  be  a  very  natural  in- 
ference, looking  at  the  thing  morally.  None  of  you  can  doubt 
that  she  waited  for  him  again  ;  and  if  she  waited  the  second 
night,  after  her  first  letter,  it  was  not  surprising  that  she  should 
look  out  for  an  interview  on  the  second  night,  after  the  second 
letter.  .  .  .  She  says,  '  I  shall  wait  again  to-morrow  night,  same 
hour  and  arrangement.'  And  I  say  there  is  no  doubt,  but  it  is 
a  matter  for  the  jury  to  consider,  that  after  writing  this  letter 


THE  ADMINISTRATION  OF  THE  POISON.  496 

he  might  expect  she  would  wait  another  night — that  is  the 
observation  I  made — and  therefore  it  was  very  natural  that  he 
should  go  to  see  her  that  Sunday  night. 

"  But,  as  I  said  to  you,  this  is  an  inference  only.  If  you 
think  it  such  a  just  and  satisfactory  inference  that  you  can  rest 
your  verdict  upon  it,  it  is  quite  competent  for  you  to  draw  such 
an  inference  from  such  letters  as  these,  and  from  the  conduct 
of  the  man  coming  to  Glasgow  for  the  purpose  of  seeing  her, 
for  it  is  plain  that  that  was  his  oliject  in  coming  to  Glasgow. 
It  is  sufficiently  proved  that  he  went  out  immediately  after  he 
got  some  tea  and  toast,  and  had  changed  his  coat.  But  then, 
gentlemen,  in  drawing  an  inference,  you  must  always  look  to 
the  important  character  of  the  inference  which  you  are  asked 
to  draw.  If  this  had  been  an  appointment  about  business,  and 
you  found  that  a  man  came  to  Glasgow  for  the  purpose  of 
seeing  another  upon  business,  and  that  he  went  out  for  that 
purpose,  having  no  other  object  in  coming  to  Glasgow,  you 
would  probably  scout  the  notion  of  the  person  whom  he  had 
gone  to  meet  saying  I  never  saw  or  heard  of  him  that  day, 
but  the  inference  which  you  are  asked  to  draw  is  this,  namely, 
that  they  met  upon  that  night,  where  the  fact  of  their  meeting 
is  the  foundation  of  a  charge  of  murder.  You  must  feel,  there- 
fore, that  the  drawing  of  an  inference  in  the  ordinary  matters  of 
civil  business,  or  in  the  actual  intercourse  of  mutual  friends,  is  one 
thing,  and  the  inference  from  the  fact  that  he  came  to  GlasgoAv, 
that  they  did  meet,  and  that,  therefore,  the  poison  was  admin- 
istered to  him  by  her  at  that  time,  is  another,  and  a  most 
enormous  jump  in  the  category  of  inferences.  Xow,  the  ques- 
tion for  you  to  put  to  yourselves  is  this :  Can  you  now,  with 
satisfaction  to  your  own  minds,  come  to  the  conclusion  that 
they  did  meet  on  that  occasion,  the  result  being,  and  the  object 
of  coming  to  that  conclusion  being,  to  fix  down  upon  her  the 
administration  of  the  arsenic  by  which  he  died  ? 

"  She  has  arsenic  before  the  22d  ;  and  that  is  a  dreadful 
fact,  if  you  are  quite  satisfied  that  she  did  not  get  it  and  use 
it  for  the  purpose  of  washing  her  hands  and  face.  It  may 
create  the  greatest  reluctance  in  your  mind,  to  take  any  other 
view  of  the  matter  than  that  she  was  guilty  of  administering 
it  somehow,  though  the  place  where  may  not  be  made  out,  or 
the  precise  time  of  the  interview.  But,  on  the  other  hand,  you 
must  keep  in  view  that  arsenic  could  only  be  administered  by 


406  THE  ADMINISTRATION  OF  THE  POISON. 

her  if  an  interview  took  place  with  L'Angelier ;  and  that  inter- 
view though  it  may  be  the  result  of  an  inference  that  may 
satisfy  you  tnorally  that  it  did  take  place,  still  rests  upon  an 
inference  alone ;  and  that  inference  is  to  be  the  ground,  and 
must  be  the  ground,  on  which  a  verdict  of  guilty  is  to  rest. 
Gentlemen,  you  will  see,  therefore,  the  necessity  of  great  caution 
and  jealousy  in  dealing  with  any  inference  which  you  may 
draw  from  this.  You  may  be  perfectly  satisfied  that  L'Ange- 
lier  did  not  commit  suicide ;  and  of  course  it  is  necessary  for 
you  to  be  satisfied  of  that,  before  you  could  find  that  anybody 
administered  arsenic  to  him.  Probably  none  of  you  will  think 
for  a  moment  that  he  went  out  that  night,  and  that,  without 
seeing  her,  and  without  knowing  what  she  wanted  to  see  him 
about,  if  they  had  met,  he  swallowed  about  200  grains  of 
arsenic  in  the  street,  and  that  he  was  carrying  it  about  with 
him.  Probably  you  will  discard  that  altogether,  .  .  .  3"et,  on 
the  other  hand,  gentlemen,  keep  in  view  that  that  Avill  not  of 
itself  establish  that  the  prisoner  administered  it.  The  matter 
may  remain  most  mysterious,  wholly  unexplained  ;  you  may 
not  be  able  to  account  for  it  on  any  other  supposition  ;  but  still 
that  supposition  or  inference  may  not  be  a  ground  on  which 
you  can  safely  and  satisfactorily  rest  your  verdict  against  the 
panel.  Now,  then,  gentlemen,  I  leave  you  to  consider  the 
case  with  reference  to  the  views  that  are  raised  upon  this  cor- 
respondence. I  don't  think  3^ou  will  consider  it  so  unlikely  as 
was  supposed,  that  this  girl,  after  writing  such  letters,  may 
have  been  capable  of  cherishing  such  a  purpose.  But  still, 
although  you  may  take  such  a  view  of  her  character,  it  is  but  a 
supposition  that  she  cherished  this  murderous  ])urpose;  the 
last  conclusion,  of  course,  that  you  ought  to  come  to  merely  on 
supposition,  and  inference,  and  observation,  upon  this  varying 
and  wavering  correspondence  of  a  girl  in  the  circumstances  in 
which  she  was  placed.  It  receives  more  importance,  no  doubt, 
when  you  find  the  purchase  of  arsenic  just  before  she  expected, 
or  just  at  the  time  she  expected,  L'Angelier.  But  still  these 
are  but  suppositions ;  they  are  but  suspicions. 

"  I  don't  say  that  inferences  may  not  competently  be  drawn  ; 
but  I  have  already  warned  you  as  to  inferences  which  may  be 
drawn  in  the  ordinary  matters  of  civil  life,  and  those  which  may 
be  drawn  in  such  a  case  as  this  ;  and  therefore,  if  you  cannot 
say,  We  find  here  satisfactory  evidence  of  this  meeting,  and 


THE  ADMINISTRATION  OF  THE  POISON.  407 

that  the  poison  must  have  been  administered  by  her  at  a  meet- 
ing, whatever  may  be  your  suspicion,  however  heavy  the 
weight  and  load  of  suspicion  is  against  her,  and  however  you 
may  have  to  struggle  to  get  rid  of  it,  you  perform  the  best  and 
bounden  duty  as  a  jury,  to  separate  suspicion  from  truth,  and 
to  proceed  upon  nothing  that  you  do  not  find  established  in 
evidence  against  her."  The  jury  returned,  in  conformity  with 
the  law  of  Scotland,  a  verdict  of  not  guilty  on  the  first,  and  of 
not  proven  on  the  second  and  third  charges.^  On  the  supposi- 
tion that  the  parties  met  on  the  fatal  evening  in  question,  there 
could  be  but  one  conclusion  as  to  the  guilt  of  the  prisoner,  the 
hypothesis  of  suicide  being  considered  by  the  learned  judge  as 
out  of  the  question,  as  it  obviously  was  ;  and  in  the  language 
of  the  learned  judge,  ''  that  this  man,  ardent  to  see  this  girl 
again,  hoping  to  get  the  satisfactory  ansu^er  which  she  had 
promised  to  give  him  respecting  her  rumored  engagement  with 
another,  should  hurry  home  on  the  Sunday  night,  and  go  out 
from  his  lodgings  in  the  hope  that  he  could  find  her  waiting, 
and  that  there  was  the  greatest  probability  of  his  seeing  her, 
was,  he  thought,  the  only  conclusion  the  jury  could  come  to 
in  the  matter."  "W  ithout  presumption,  it  may  be  observed  that 
the  distinction  thus  drawn  between  "  a  very  natural  inference, 
looking  at  the  thing  morally,"  "  an  inference  that  may  satisfy 
a  jury  morally,"  so  that  "  no  one  need  hesitate  to  say  as  a 
matter  of  moral  opinion,  the  whole  probabilities  of  the  case  are 
in  favor  of  it,"  and  "  as  the  only  conclusionthe  jury  could  come 
to,"  and  that  moral  certainty  which  is  the  only  foundation  of 
our  confidence  in  the  sufficiency  and  safety  of  conclusions  based 
upon  circumstantial  evidence,  and  which  in  ever}'  case  can  be 
but  inferential,  is  fine  and  shadowy  in  the  extreme.  Nor  is  it 
easy  to  reconcile  with  sound  principle,  as  recognized  in  other 
cases,  English  and  Scotch,  any  distinction  in  the  application 
of  the  rules  of  evidence  and  inference  according  as  the  subject- 
matter  relates  to  the  ordinary  or  the  uncommon  events  of  life.^ 
And  even  upon  that  supposition,  surely  no  matter  or  occasion 
of  ordinary  business  could  have  been  more  important  to  her, 
or  have  more  deeply  interested  the  parties,  or  be  more  likely 
to  bring  two  young  persons  so  mutually  implicated  together, 

^  Reg.  V.  Madeleine  Smith,  June,  1857  ;  Reports  of  A.  F.  Irvine,  Advocate, 
and  John  Morrison,  Advocate. 
2  Rex  V.  Ings,  and  Reg.  v.  Hanson  and  others,  ante. 


408  THE  ADMINISTRATION  OF  THE  POISON. 

than  the  object  of  the  anxiously  looked-for  meeting  appointed 
for  the  night  in  question. 

Of  the  various  heads  of  evidence  in  charges  of  poisoning, 
that  of  moral  conduct  is  of  most  general  interest.  The  data 
of  physiological  and  pathological  and  chemical  science  must 
always  be  matter  of  opinion  testified  to  by  skilled  witnesses  ; 
whereas  in  the  forensic  discussion  of  moral  facts,  appeal  is 
necessarily  made  to  those  psychological  principles  of  our 
nature  which  give  them  pertinence  and  significance,  and  upon 
which  every  intelligent  person  is  capable  of  forming  a  trust- 
worthy judgment.  It  would  be  absurd  to  suppose  that  such 
facts,  when  clearly  connected  by  adequate  independent  evi- 
dence with  a  corpus  delicti^  are  simply  fortuitous  and  phenom- 
enal ;  on  the  contrary,  they  are  the  natural  and  unmistakable 
manifestations  of  the  secret  workings  of  the  mind,  not  only 
throwing  light  upon,  and  bringing  into  relief,  the  character  of 
the  act  itself,  but  tending  also  to  discriminate  the  individual 
guilty  actor.  His  necessities,  his  antipathies,  or  other  motives, 
his  reluctance  to  permit  examination  of  the  body,  or  its  con- 
tents, or  excj'eta,  or  of  other  suspected  matter,  his  contrivances 
to  prevent  it,  his  attempts  to  tamper  with  the  witnesses  or  the 
officers  of  justice,  or  with  such  suspected  matter,  or  with  any 
other  article  of  real  evidence,  his  falsehoods,  subterfuges,  and 
evasions,  these  and  many  other  circumstances  constitute  most 
material  explanatory  parts  of  the  resgest(B^  and  afford  relevant 
and  frequently  conclusive  evidence,  from  which  his  guilt  may 
be  reasonably  inferred. 

In  the  Harris  case  ^  a  witness  was  permitted  to  testify  to  a 
conversation  with  the  defendant  in  which,  after  boasting  of 
his  previous  extensive  intercourse  with  women,  and  of  his 
successful  methods  for  violating  their  persons,  he  admitted 
having  previously  contracted  two  secret  marriages,  made 
necessary  to  overcome  the  scruples  of  the  women.  This  was 
clearly  admissible  on  the  question  of  motive,  for  with  his  pre- 
vious secret  marriage,  the  publicity  of  his  later  marriage  with 
the  deceased  would  have  ruined  his  reputation,  and  probably 
submitted  him  to  a  criminal  prosecution  as  a  bigamist.  An- 
other witness  was  allowed  to  testify  that  a  short  time  before 
the  fatal  illness  of  the  deceased,  the  defendant  had  illicit  re- 

i  People  V.  Harris,  infras 


THE  ADMINISTRATION  OF  THE  POISON.  409 

lations  with  a  young  woman  in  another  part  of  the  State,  and 
that  the  witness  had  overheard  a  conversation  between  them 
in  which  the  defendant  suggested  that  the  woman  marry  some 
old  man  with  plenty  of  money,  and  that  they  could  then  "  give 
him  a  pill,"  and  get  him  out  of  the  way.  This  bore  upon  the 
question  of  motive,  and  tended  to  rebut  the  strong  presumption 
in  favor  of  a  husband  on  trial  for  the  murder  of  his  wife. 
"  The  evidence  of  an  illicit  intercourse  went  to  exhibit  what 
were  the  defendant's  feelings  towards  his  wife,  and  bore  upon 
his  desire  to  get  rid  of  the  marriage  relation.  The  further 
evidence  in  what  he  proposed  to  his  mistress,  that  she  could  or 
should  do,  went  to  exhibit  how  strongly  he  desired  the  per- 
manence of  their  relations,  and  to  point  out  a  way  by  which,  in 
the  future,  they  could  secure  that  permanence  with  such  ad- 
vantages in  their  surroundings  as  the  possession  of  wealth 
would  procure."  ^ 

In  another  case  the  wife  of  the  prisoner  whom  he  was 
charged  with  poisoning  was  much  older  than  he,  and  had  lost 
some  of  her  personal  attractions.  And  she  had  living  with 
her  a  niece  who  was  J^oung  and  attractive,  and  for  whom  the 
accused  had  conceived  a  strong  passion.  It  appeared  that  he 
had,  on  at  least  one  occasion,  made  an  attempt  to  have  crim- 
inal intercourse  with  the  niece.  And  it  was  supposed  that  an 
anonymous  letter  written  to  one  of  the  niece's  suitors,  making 
an  attack  on  the  girl's  character  and  attempting  to  dissuade 
the  suitor  from  paying  further  attention  to  her,  had  been 
written  by  the  accused.^  In  a  case  of  attempted  poisoning  of 
a  woman  by  her  husband,  it  was  shown  that  the  two  had  lived 
at  enmity  for  a  considerable  time  before  the  attemj^t,  and  that 
the  accused  had  openly  declared  an  all-devouring  passion  for  a 
young  woman  of  the  neighborhood.^ 

In  the  Graves  case  the  motive  suggested  was  that  the  de- 
fendant might  get  possession  of  a  large  sum  of  money  Avhich 
the  defendant  supposed  that  the  deceased  would  bequeath  to 
him  at  her  death.* 

On  the  trial  of  a  negress  for  attempted  poisoning,  it  appeared 
that  the  accused  had  been  discharged  from  the  service  of  the 

1  See  opinion  of  Gray,  J. 

2  People  V.  Stephens,  infra. 
8  Bell  r.  Com.,  88  Va.  365. 

*  Graves  v.  People,  18  Col.  170.     See  also  State  v.  Baldwin,  36  Kan.  1. 


410  THE  ADMINISTRATION  OF  THE  POISON. 

family  on  the  day  before  the  attempt  was  made,  and  had  been 
threatened  with  a  beating.^ 

In  most  criminal  charges,  the  evidence  of  the  corpus  delicti 
is  separable  from  that  which  applies  to  the  indication  of  the 
offender ;  but  in  cases  of  poisoning,  it  is  scarcely  ever  possible 
to  obtain  conclusive  evidence  of  the  corjyns  delicti,  irrespectively 
of  the  explanatory  evidence  of  moral  conduct ;  and  Mr.  Jus- 
tice Buller,  in  DonellarCs  case,  told  the  jury  that  "  if  there  was 
a  doubt  upon  the  evidence  of  the  physical  witnesses,  they 
must  take  into  their  consideration  all  the  other  circumstances, 
either  to  show  that  there  was  poison  administered,  or  that 
there  was  not,  and  that  every  part  of  the  prisoner's  conduct 
was  material  to  be  considered."  ^  So  in  DonnaWs  case,  Mr. 
Justice  Abbott,  in  summing  up,  said  to  the  jury  that  there 
were  two  important  questions :  first,  did  the  deceased  die  of 
poison  ?  and  if  they  should  be  of  opinion  that  she  did,  then, 
whether  they  were  satisfied  from  the  evidence  that  the  poison 
was  administered  by  the  prisoner  or  by  his  means  ?  There 
were  some  parts  of  the  evidence  Avhich  appeared  to  him 
equally  applicable  to  both  questions,  and  those  parts  were 
what  related  to  the  conduct  of  the  prisoner  during  the  time  of 
the  opening  and  inspection  of  the  body ;  his  recommendation 
of  a  shell  and  the  early  burial ;  to  which  might  be  added  the 
circumstances,  not  much  to  be  relied  upon,  relative  to  his 
endeavors  to  evade  his  apprehension.  His  lordship  also  said,  as 
to  the  question  whether  the  deceased  died  by  poison,  "  in  consid- 
ering what  the  medical  men  said  upon  the  one  side  and  the 
other,  you  must  take  into  account  the  conduct  of  the  prisoner 
in  urging  a  hasty  funeral,  and  his  conduct  in  throwing  away 
the  contents  of  the  jug  into  the  chamber  utensil."^  Lord 
Chief  Justice  Campbell,  in  his  charge  to  the  jury  in  Palmer'' s 
case,  said  that  "  in  cases  of  this  sort  the  evidence  had  often 
been  divided  into  medical  and  moral  evidence ;  the  medical 
being  that  of  the  scientific  men,  and  the  moral  the  circum- 
stantial facts  which  are  calculated  to  prove  the  truth  of  the 
charge  against  the  party  accused.  They  cannot,"  he  con- 
tinued, "  be  finally  separated  in  the  minds  of  the  jury,  because 
it  is  by  the  combination  of  the  two  species  of  evidence  that 

1  Brown  v.  State,  88  Ga.  257. 

2  Gurney's  Short-hand  Report,  id  supra,  p.  53. 

3  Frazer's  Short-hand  Rep.,  ut  siy^j-a,  pp.  137.  177. 


THE  ADMINISTRATION  OF  THE  POISON.  4II 

their  verdict  ought  to  be  found.  In  this  case  you  will  look  at 
the  medical  evidence  to  see  whether  the  deceased,  in  your 
opinion,  did  die  by  strychnia  or  by  natural  disease  ;  and  you 
will  look  at  what  is  called  the  moral  evidence,  and  consider 
whether  that  shows  that  the  prisoner  not  only  had  the  oppor- 
tunity, but  that  he  actually  availed  himself  of  that  opportun- 
ity, to  administer  to  the  deceased  the  deadly  poison  of  which 
he  died."  His  lordship  also  said  that  "  it  was  impossible  they 
should  not  pay  attention  to  the  conduct  of  the  prisoner,  and 
that  there  were  some  instances  of  his  conduct  as  to  which  they 
would  say  whether  they  belonged  to  what  might  be  expected 
from  an  innocent  or  a  guilty  man.  He  was  eager  to  have  the 
body  fastened  down  in  the  coffin.  Then  with  regard  to  the 
betting-book,  there  is  certainly  evidence  from  which  you  may 
infer  that  he  did  get  possession  of  the  deceased's  betting-book, 
and  that  he  abstracted  it  and  concealed  it.  Then,  gentlemen, 
you  must  not  omit  his  conduct  in  trying  to  bribe  the  post-boy 
to  overturn  the  carriage  in  which  the  jar  was  being  conveyed 
to  be  analyzed  in  London,  and  from  which  evidence  might  be 
obtained  of  his  guilt.  Again,  you  find  him  tampering  with 
the  post-master,  and  procuring  from  him  the  opening  of  a 
letter  from  the  person  who  had  been  examining  the  contents 
of  the  jar,  to  the  attorney  employed  in  the  case.  And,  then, 
gentlemen,  you  have  tampering  with  the  coroner,  and  trying 
to  induce  him  to  procure  a  verdict  from  the  coroner's  jury 
which  would  amount  to  an  acquittal.  These  are  serious  mat- 
ters for  your  consideration,  but  you,  and  you  alone,  will  say 
what  inference  is  to  be  drawn  from  them.  If  not  answered, 
they  certainly  present  a  serious  case  for  your  consideration."  ^ 
One  accused  of  an  attempt  to  poison  the  members  of  a  fam- 
ily, by  placing  the  poison  in  the  flour  which  was  to  be  used  for 
the  morning  meal,  had  hung  around  the  house  for  several  hours 
after  the  meal,  and  asked  if  a  certain  person  was  sick,  though 
nothing  of  the  sickness  had  been  told  her.^  When  the  pris- 
oner on  a  trial  for  poisoning  his  wife  had  sent  her  the  poison 
from  a  distance  and  told  a  witness  that  his  wife  was  dead, 
when  he  had  not,  and  could  not  have  received  any  communica- 

1  See  Report  of  Reg.  v.  Palmer  at  pp.  308  and  320.  Further  on  this  sub- 
ject see  State  v.  Baldwin,  36  Kan.  1,  where  the  conduct  of  the  prisoner 
subsequent  to  the  death  of  his  victim  told  strongly  against  him. 

2  Brown  v.  State,  88  Ga.  257. 


412  THE  ADMINISTRATION  OF  THE  POISON. 

tion  to  that  effect,  this  was  a  circumstance  which  must  have 
had,  and  justly,  great  weight  with  the  jury,  in  determining 
the  question  of  guilt.^  And  in  the  celebrated  Mayhrick  case 
it  was  shown  on  the  trial  that  the  defendant  had  told  her  para- 
mour that  her  husband  was  "  sick  unto  death,"  when  as  yet  it 
had  not  appeared  that  his  illness  was  incurable.  In  Stejphens^ 
case  it  was  a  circumstance  much  commented  on  that  the 
defendant  left  his  wife's  room  while  she  was  in  her  dying 
agony  and  remained  away  several  hours.^  On  the  trial  of 
Adelaide  Bartlett  for  the  murder  of  her  husband  by  poison  an 
impression  was  created  favorable  to  the  accused  by  the  fact 
that  she  had  assiduously  cared  for  the  deceased  during  the 
long  course  of  his  illness,  and  had  constantly  manifested  a 
strong  and  tender  affection  for  him.^ 

Among  the  most  important  circumstances  of  moral  conduct, 
and  in  analogy  with  the  rules  which  prevail  in  the  proof  of  the 
corpus  deliGti  in  other  cases,  may  be  mentioned  former  acts  of 
poisoning,  or  attempts  to  poison,  whether  the  same  individual, 
or  other  members  of  the  same  family,  Avhere  such  successive 
administrations  throw  light  upon  the  particular  act  which 
forms  the  subject  of  inquiry.  On  a  trial  for  murder  by  the 
administration  of  prussic  acid  in  porter,  evidence  was  admitted 
that  the  deceased  had  been  taken  ill  several  months  before, 
after  partaldng  of  porter  with  the  prisoner.*  And  upon  the 
trial  of  a  woman  for  the  murder  of  her  husband  by  arsenic,  in 
September,  evidence  was  admitted  of  arsenic  having  been 
taken  by  two  of  her  sons,  one  of  whom  died  in  December,  and 
the  other  in  March  following,  and  also  by  a  third  son,  who 
took  arsenic  in  April  following,  but  did  not  die.  Evidence 
was  also  admitted  of  a  similarity  of  symptoms  in  the  four 
cases,  that  the  prisoner  lived  in  the  same  house  with  her  hus- 
band and  sons,  and  prepared  their  tea,  cooked  their  victuals, 
and  distributed  them  to  the  four  parties.  Lord  Chief  Baron 
Pollock  said  his  opinion  was  that  evidence  was  receivable 
that  the  deaths  of  two  sons,  and  the  illness  of  the  third,  pro- 
ceeded from  the  same  cause,  namely,  arsenic.     The  tendency  of 

1  McMeen  v.  Com.,  114  Pa.  St.  300. 

2  People  V.  Stephens,  4  Park.  Cr.  R.  396. 

3  Reg.  V.  Bartlett,  Cent.  Crim.  Ct.  Sess.  Pap.  vol.  ciii.  pt.  618,  pp. 
735-811.     See  also  London  Lancet,  May  22,  1886. 

*  Reg.  V,  Tawell,  ut  supra. 


THE  ADMINISTRATION  OF  THE  POISON.  413 

such  evidence,  he  said,  was  to  prove,  and  to  confirm  the  proof 
already  given,  that  the  death  of  the  husband,  whether  felon- 
ious or  not,  was  occasioned  by  arsenic.  In  that  case  he 
thought  it  wholly  immaterial  whether  the  deaths  of  the  sons 
took  place  before  or  after  the  death  of  the  husband.  The 
domestic  history  of  the  family  during  the  period  that  the  four 
deaths  occurred  was  also  receivable  in  evidence,  to  show  that 
during  that  time  arsenic  had  been  taken  by  four  members  of 
it,  with  a  view  to  enable  the  jury  to  determine  whether  such 
taking  was  accidental  or  not.  The  evidence,  he  said,  was  not 
inadmissible,  by  reason  of  its  tendency  to  prove,  or  to  create  a 
suspicion  of  a  subsequent  felony.  His  lordship,  after  taking 
time  to  consider,  refused  to  reserve  the  point  for  the  opinion 
of  the  judges,  under  the  11  &  12  Vict.  c.  78,  and  stated  that 
Mr,  Baron  Alderson  and  Mr.  Justice  Talfourd  concurred  in 
opinion  with  him.^ 

In  a  case  where  a  man  and  his  wife  were  indicted  for  the 
murder  of  the  male  prisoner's  mother,  by  poisoning,  evidence 
was  admitted  for  the  purpose  of  rebutting  the  inference 
that  the  arsenic  was  taken  accidentally,  to  show  that  some 
months  previously  the  first  wife  of  the  male  prisoner  had  died 
by  poison  ;  and  that  the  woman  who  waited  on  the  mother  and 
tasted  her  food  was  several  times  taken  sick  ;  that  the  food 
was  always  prepared  by  the  female  prisoner;  and  that  on  no 
occasion  were  the  prisoners  affected,  nor  did  they  show 
symptoms  of  poison,^ 

Mrs.  Rohuison  was  convicted  of  the  murder  of  her  brother- 
in-law,  and  it  was  supposed  that  the  motive  was  that  she  might 
get  possession  of  the  insurance  money.  The  beneficiary  of  the 
policy  was,  in  the  first  Instance,  the  wife  of  the  deceased,  who 
had  died  a  short  time  before  under  suspicious  circumstances. 
On  the  death  of  the  deceased's  wife,  the  accused  became  en 
titled  to  the  proceeds  of  the  policy.  It  was  held  that  if  it  were 
shown  that  the  accused  knew  this  fact,  and  that  she  had,  before 
the  death  of  the  deceased's  wife,  formed  the  intention  of  get- 
ting possession  of  the  insurance  money,  then  the  circumstances 
tending  to  prove  that  the  deceased's  wife  came  to  her  death 

1  Reg.  V.  Geering,  27  L.  J.  M.  C.  215.  And  see  Reg.  v.  May,  1  Cox's  C.  C. 
236  ;  Reg.  t\  Calder,  Id.  348.  and  the  language  of  Mr.  Baron  Maule,  in  Reg. 
V.  Dossett,  2  C.  &  K.  306. 

2  Reg.  V.  Garner  et  ux.,  4  F.  &  F.  346.     See  also  Reg.  v.  Cotton,  supra. 


414  THE  ADMINISTRATION  OF  THE  POISON. 

by  poison  administered  by  the  accused  might  be  shown.^  On 
the  trial  of  Dr.  Goersen  for  the  murder  of  his  wife  by  admin- 
istering arsenic,  the  theory  of  the  Commonwealth  was,  that  the 
defendant  wished  to  get  possession  of  some  property,  belong- 
ing to  his  wife,  and  in  which  her  mother  had  an  interest.  To 
do  this  he  had  to  get  rid  of  both  his  wife  and  her  mother.  It 
was  then  admissible  to  show  that  the  mother  had  died  a  few  days 
before  the  wife,  that  the  defendant  had  attended  her  in  her  last 
illness,  and  that  the  body  was  exhumed  and  examined,  and 
found  to  contain  arsenic,  and  to  show  such  other  circumstances 
as  tended  to  rebut  the  theory  of  accident  or  suicide.^ 

But,  nevertheless,  moral  facts  apparently  calculated  to  create 
the  greatest  suspicion  may  not  be  of  a  suspicious  nature,  or 
may  be  too  fallacious  and  uncertain  to  justify  conviction, 
especially  where  the  corpus  delicti  is  matter  of  inference  only, 
and  not  established  on  a  basis  of  independent  evidence.  Justice 
requires  that  such  facts  should  be  interpreted  in  a  spirit  of 
candor,  and  with  proper  allowance  for  the  weaknesses  of  men 
who  may  be  suddenly  placed  in  circumstances  of  suspicion  and 
difficulty.  It  is  well  known,  for  example,  that  many  persons, 
more  especially  in  the  humbler  classes,  feel  great  repugnance 
to  permit  the  bodies  of  their  friends  to  be  subjected  to  anatom- 
ical examination.  The  manifestation  of  such  repugnance  is 
a  fact  to  be  taken  into  account,  like  all  other  facts.  But 
although  in  the  case  of  violent  or  sudden  death,  and  partic- 
ularly when  caused  by  poison,  it  must  be  known  that  the  post- 
inortem  examination  is  of  the  highest  importance,  it  by  no 
means  follows  that  objection  to  permit  such  examination  pro- 
ceeds from  the  consciousness  of  guilt.  In  a  case  of  this  kind, 
Mr.  Baron  Rolfe  said  that  the  question  was,  from  what  motive 
the  reluctance  arose.  On  the  one  hand,  it  was  suggested  that 
it  was  because  the  prisoner  did  not  wish  the  cause  of  his  wife's 
death  to  be  investigated,  being  afraid  it  would  be  discovered 
that  she  had  died  from  arsenic ;  on  the  other,  that  his 
reluctance  arose  from  his  horror  of  the  notion  of  his  wife's  dead 
body  being  taken  up  and  exposed  to  the  investigation  of  the 
surgeons,  at  which  the  feelings  were  apt  to  revolt.  Many  per- 
sons, no  doubt,  feel  very  great  horror  at  the  notion  of  such 
things  being  done  to  themselves,  or  those  connected  with  them, 

1  Com.  V.  Robinson,  146  Mass.  571.         2  Goersen  v.  Com.,  106  Pa.  St.  477. 


THE  ADMINISTRATION  OF  THE  POISON.  415 

whilst  others,  again,  were  indifferent  on  the  subject,  leaving 
their  own  bodies  to  be  dissected.  But  few  persons  liked  to 
have  their  wives  or  their  daughters  so  exposed ;  the  prisoner, 
said  the  learned  judge,  might  not  be  one  of  them,  and  his  feel- 
ings on  that  subject  might  have  promoted  the  remark  alleged 
against  him ;  and  surely  he  must  have  known  that  any  reluct- 
ance expressed  by  him  to  an  inquiry,  or  wish  to  stop  it,  would 
only  tend  to  make  those  who  were  about  to  make  it  persevere.^ 
An  observation  of  Mr.  Justice  Stephen  \W11  be  appropriate 
here.  Speaking  on  the  subject  of  prisoners  as  witnesses,  that 
eminent  criminal  lawyer  remarked  that  though  "  it  might 
seem  paradoxical  to  say  so,  it  was  nevertheless  true,  that  the 
class  of  accused  persons  who  will  get  least  advantage  from 
having  their  mouths  opened  are  those  who  are  entirely  innocent 
of,  and  unconnected  with,  the  crime,  of  which  they  are  charged 
— persons  who  have  nothing  to  conceal  and  nothing  to  explain." 
In  connection  with  this  it  may  be  noticed  as  a  remarkable  cir- 
cumstance that  when  Mrs.  May  brick  made  her  statement  it  was 
not  established  beyond  a  doubt  that  the  deceased  died  of  arsen- 
ical poisoning.  Even  if  he  died  from  arsenic,  it  was  not  shown 
that  Mrs.  Maybrick  administered  it ;  there  was  no  proof  that 
she  had  arsenic  in  her  possession,  except  in  the  form  of 
fly-papers,  and  it  was  clearly  shown  that  the  deceased  was  in 
the  habit  of  taking  arsenic.  Thus  there  was  a  strong  proba- 
bility that  the  prisoner  would  be  acquitted.  But  when  in  the 
course  of  her  statement  she  admitted  that  she  had  put  a  white 
powder  in  the  meat,  it  seemed  that  all  hope  was  shut  out.^ 

1  Reg.  V.  Graham,  ut  supra. 

2  Extract  from  Solicitors'  Journal,  in  11  Crim.  L.  Mag.  834. 


CHAPTER   III. 

CASES   IN   ILLUSTRATION   OF  THE   FOREGOING   RULES. 

An  analysis  of  some  of  the  most  remarkable  recorded  cases 
of  criminal  poisoning  which  have  occm'red  in  our  judicial 
annals,  will  form  an  interesting  commentary  upon  the  general 
rules  of  evidence,  and  more  especially  in  theu-  application  to 
the  interpretation  of  moral  inculpatory  facts. 

John  Donellan,  Esq.,  was  tried  at  "Warwick  Spring  Assizes, 

1Y81,    before    Mr.    Justice    Buller,    for    the  murder  of   Sir 

Theodosius   Boughton,  his   brother-in-law,   a  young  man   of 

fortune,  twenty  years  of  age,  Avho  up  to  the  moment  of  his 

death  had  been  in  good  health  and  spirits,  with  the  exception 

of  a  trifling  venereal  ailment,  for  which  he  occasionally  took 

a  laxative   draught.      Mrs.  Donellan  was   the  sister    of    the 

deceased,  and  together  with    Lady   Boughton,  his    mother, 

lived  with  him  at  Lawford  Hall,  the  family  mansion.     On 

attaining  twenty-one,  Sir  Theodosius  would  have  been  entitled 

absolutely  to  an  estate  of  £2,000  per  annum,  the  greater  part 

of  which,  in  the  event  of  his  dying  under  that  age,  would  have 

descended  to  the  prisoner's  wife.     For  some  time  before  the 

death  of  Sir  Theodosius,  the  prisoner  had  on  several  occasions 

falsely  represented  his  health  to  be  very  bad,  and  his  life  to  be 

precarious,  and  not  worth  a  year's  purchase,  though  to  all 

appearances  he  was  well  and  in  good  health.     On  the  29th  of 

August  the   apothecary  in  attendance  sent  him  a  mild  and 

harmless  draught,  to  be  taken  the   next   morning.      In   the 

evening  the  deceased  was  out  fishing,  and  the  prisoner  told 

his  mother  that  he  had  been  out  with  him,  and  that  he  had 

imprudently  got  his  feet  wet,  both  of  which  representations 

were  false.     When  he  was  called  on  the  following  morning, 

he  was  in  good  liealth ;  and  about  seven  o'clock  his  mother 

went  to  his  chamber  for  the  purpose  of  giving  him  his  draught, 

of  the  smell  and  nauseousness  of  which  he  immediately  com- 
416 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    417 

plained,  and  she  remarked  that  it  smelt  like  bitter  almonds. 
In  about  two  minutes  he  struggled  very  much,  as  if  to  keep 
the  medicine  down,  and  Lady  Boughton  observed  a  gurgling 
in  his  stomach  ;  in  ten  minutes  he  seemed  inclined  to  doze, 
but  in  five  minutes  afterwards  she  found  him  with  his 
eyes  lixed,  his  teeth  clenched,  and  froth  running  out  of  his 
mouth,  and  within  half  an  hour  after  taking  the  draught  he 
died.  Lady  Boughton  ran  downstairs  to  give  orders  to  a 
servant  to  go  for  the  apothecary,  who  lived  about  three  miles 
distant ;  and  in  less  than  five  minutes  the  prisoner  came  into 
the  bedroom,  and  after  she  had  given  him  an  account  of  the 
manner  in  which  Sir  Theodosius  had  been  taken,  he  asked 
where  the  physic-bottle  was,  and  she  showed  him  the  two 
bottles.  The  prisoner  then  took  up  one  of  them  and  said,  "  Is 
this  it  ? "  and  being  answered  "  Yes,"  he  poured  some  water 
out  of  the  water-bottle,  which  was  near,  into  the  phial,  shook 
it,  and  then  emptied  it  into  some  dirty  water,  which  was  in  a 
wash-hand  basin.  Lady  Boughton  said,  "  You  should  not 
meddle  with  the  bottle ; "  upon  which  the  prisoner  snatched 
up  the  other  bottle  and  poured  water  into  that  also,  and  shook 
it,  and  then  put  his  finger  to  it  and  tasted  it.  Lady  Boughton 
again  asked  w^hat  he  was  about,  and  said  he  ought  not  to  med- 
dle with  the  bottles  :  on  which  he  replied  he  did  it  to  taste  it, 
though  he  had  not  tasted  the  first  bottle.  The  prisoner 
ordered  a  servant  to  take  away  the  basin,  the  dirty  things, 
and  the  bottles,  and  put  the  bottles  into  her  hands  for  that 
purpose  ;  she  put  them  down  again  on  being  directed  by  Lady 
Boughton  to  do  so,  but  subsequently,  while  Lady  Boughton's 
back  was  turned,  removed  them  on  the  peremptor}'^  order  of 
the  prisoner.  On  the  arrival  of  the  apothecary,  the  prisoner 
said  the  deceased  had  been  out  the  preceding  evening,  fishing, 
and  had  taken  cold,  but  he  said  nothing  of  the  draught  which 
he  had  taken.  The  prisoner  had  a  still  in  his  OAvn  room,  which 
he  had  used  for  distilling  roses  ;  and  a  few  days  after  the 
death  of  Sir  Theodosius  he  brought  it,  full  of  wet  hme,  to  one 
of  the  servants,  to  be  cleaned.  The  prisoner  made  several 
false  and  inconsistent  statements  to  the  servants  and  others  as 
to  the  cause  of  the  young  man's  death,  attributing  it  at  one 
time  to  his  having  been  out  late,  fishing,  and  getting  his  feet 
wet,  and  at  another  to  the  bursting  of  a  blood-vessel,  and 
again  to  the  malady  for  which  he  was  under  treatment,  and 


418    CASES  IN  ILLUSTRATION  OF  THE  FOKEGOING  RULES. 

the  medicine  given  to  him.  On  the  day  of  his  death  he  wrote 
to  Sir  William  Wheeler,  his  guardian,  to  inform  him  of  the 
event,  but  made  no  reference  to  its  suddenness.  The  coffin 
was  soldered  i\])  on  the  fourth  day  after  the  death.  Two  days 
afterwards.  Sir  William,  in  consequence  of  the  rumors  which 
had  reached  him  of  the  manner  of  his  friend's  death,  and  that 
suspicions  were  entertained  that  he  had  died  from  the  effects 
of  poison,  wrote  a  letter  to  the  prisoner,  requesting  that  an  ex- 
amination might  take  place,  and  mentioning  the  gentlemen  by 
whom  he  wished  it  to  be  conducted.  He  accordingly  sent  for 
them,  but  did  not  exhibit  Sir  William  Wheeler's  letter,  alluding 
to  the  suspicion  that  the  deceased  had  been  poisoned,  nor  did 
he  mention  to  them  that  they  were  sent  for  at  his  request. 
Having  been  induced  by  the  prisoner  to  suppose  the  case  to  be 
one  of  ordinary  sudden  death,  and  finding  the  body  in  an 
advanced  state  of  putrefaction,  the  medical  gentlemen  declined 
to  make  the  examination,  on  the  ground  that  it  might  be 
attended  with  personal  danger.  On  the  following  day  a 
medical  man,  w^ho  had  heard  of  their  refusal  to  examine  the 
body,  offered  to  do  so  ;  but  the  prisoner  declined  his  offer,  on 
the  ground  that  he  had  not  been  directed  to  send  for  him. 
On  the  same  day  the  prisoner  wrote  to  Sir  William  a  letter, 
in  which  he  stated  that  the  medical  men  had  fully  satisfied  the 
family,  and  endeavored  to  account  for  the  event  by  the  ailment 
under  which  the  deceased  had  been  suffering ;  but  he  did  not 
state  that  they  had  not  made  the  examination.  Three  or  four 
days  afterwards.  Sir  William,  having  been  informed  that  the 
body  had  not  been  examined,  wrote  to  the  prisoner  insisting 
that  it  should  be  done,  which,  however,  he  prevented,  by 
various  disingenuous  contrivances,  and  the  body  was  interred 
without  examination.  In  the  meantime,  the  circumstances 
having  become  known  to  the  coroner,  he  caused  the  body  to 
be  disinterred  and  examined  on  the  eleventh  day  after  death. 
Putrefaction  was  found  to  be  far  advanced ;  and  the  head  was 
not  opened,  nor  the  bowels  examined,  and  in  other  respects 
the  examination  was  incomplete.  When  Lady  Boughton,  in 
giving  evidence  before  the  coroner's  inquest,  related  the  cir- 
cumstances of  the  prisoner  having  rinsed  the  bottles,  he  was 
observed  to  take  hold  of  her  sleeve,  and  endeavor  to  check 
her  ;  and  he  afterwards  told  her  that  she  had  no  occasion  to 
have  mentioned  that  circumstance,  but  only  to  ansAver  such 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    419 

questions  as  were  put  to  her ;  and  in  a  letter  to  the  coroner 
and  jury,  he  endeavored  to  impress  them  with  the  belief  that 
the  deceased  had  inadvertently  poisoned  himself  with  arsenic, 
which  he  had  purchased  to  kill  fish.  Experiments  made  by 
the  administrations  of  laurel-water  on  various  animals  produced 
convulsions  and  sudden  death,  and  on  opening  one  of  them  a 
strong  smell  of  laurel-water  was  perceived.  Upon  the  trial, 
four  medical  men,  three  physicians  and  an  apothecary,  were 
examined  on  the  part  of  the  prosecution,  and  expressed  a  very 
decided  opinion,  mainly  grounded  upon  the  symptoms  of  the 
suddenness  of  the  death,  the  post-mortem  appearances,  the 
smell  of  the  draught  as  observed  by  Lady  Boughton,  and  the 
similar  effects  produced  by  experiments  upon  animals,  that  the 
deceased  had  been  poisoned  with  laurel-water ;  and  one  of 
them  stated  that,  on  opening  the  body,  he  had  been  affected 
with  a  peculiar  biting,  acrimonious  taste  in  the  hands  and 
mouth,  like  that  which  affected  him  in  all  the  subsequent  ex- 
periments with  laurel- water.  An  eminent  surgeon  and 
anatomist,  examined  on  the  part  of  the  prisoner,  stated  a 
positive  opinion  that  the  symptoms  did  not  necessarily  lead  to 
the  conclusion  that  the  deceased  had  been  poisoned,  and  that 
the  appearances  presented  upon  dissection  explained  nothing 
but  putrefaction. 

Mr.  Justice  Buller,  in  his  charge  to  the  jury,  called  their 
attention  to  the  suddenness  of  the  death  immediately  after  the 
administration  of  a  draught  by  the  prisoner,  to  the  opinions  of 
the  medical  witnesses  that  there  was  nothing  to  lead  them  to 
attribute  death  to  any  other  cause  than  that  draught,  to  the 
prisoner's  misrepresentations  as  to  the  deceased's  state  of  health 
at  a  time  when  he  appeared  to  others  to  be  in  good  health  and 
spirits,  to  his  contrivances  to  prevent  the  examination  of  the 
body,  and  emphatically  to  the  fact  of  his  having  rinsed  out 
the  bottle  from  which  the  draught  had  been  taken,  "  which," 
said  the  learned  judge,  "  does  carry  with  it  strong  marks  of 
knowledge  by  him  that  there  was  something  in  that  bottle 
which  he  wished  should  never  be  discovered  ; "  and  finally,  to 
his  attempts  to  check  the  witness  who  spoke  to  that  circum- 
stance while  giving  her  evidence  before  the  coroner.  The 
prisoner  was  convicted  and  executed. 

This  trial  has  given  rise  to  much  difference  of  opinion,  and 
assuredly  the  scientific  evidence  was  very  imperfect  and  un- 


420    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

satisfactory.  But  the  manner  in  which  death  occurred,  at  the 
very  instant  of  taking  the  draught  from  the  hand  of  the 
prisoner,  Avas  all  but  conclusive  that  it  contained  some  poison- 
ous ingredient  which  was  the  cause  of  death  ;  and  though  the 
mere  coincidence  of  the  two  events  would  not  alone  have  been 
exclusive  of  the  hypothesis  of  a  sudden  death  from  accident  or 
natural  cause,  the  conjunction  of  those  events  with  so  many 
circumstances  of  moral  conduct  of  deep  inculpatory  import, 
could  admit  of  explanation  only  on  the  hypothesis  of  the 
prisoner's  guilt.  It  is  impossible  to  regard  those  circumstances 
in  any  other  light  than  as  the  necessary  indications,  on  the 
ordinary  principles  of  human  nature,  of  the  moral  causal 
origin  of  the  fatal  catastrophe. 

Robert  Sawle  Donnall,  a  surgeon  and  apothecary,  was  tried 
at  Launceston  Spring  Assizes,  1817,  before  Mr.  Justice  Abbott, 
for  the  murder  of  Mrs.  Elizabeth  Downing,  his  mother-in-law. 

The  prisoner  and  the  deceased  were  next-door  neighbors, 
and  lived  upon  friendly  terms ;  and  there  was  no  suggestion  of 
malice,  nor  could  any  motive  be  assigned  which  could  have  in- 
duced the  prisoner  to  commit  such  an  act,  except  that  he  was 
in  somewhat  straitened  circumstances,  and  in  the  event  of  his 
mother-in-law's  death  would  have  become  entitled  to  a  share 
of  her  property.  On  the  19th  of  October  the  deceased  drank 
tea  at  the  prisoner's  house,  which  was  handed  to  her  by  him, 
and  returned  home  much  indisposed,  retching  and  vomiting, 
with  a  violent  cramp  in  her  legs,  from  which  she  did  not  re- 
cover for  several  days.  About  a  fortnight  afterwards,  after 
returning  from  church,  and  dining  at  home  on  boiled  rabbits 
smothered  with  onions,  upon  the  invitation  of  her  daughter  she 
drank  tea  in  the  evening  at  the  prisoner's  house,  with  a  family 
party.  The  prisoner  on  this  occasion  also  handed  to  the  de- 
ceased cocoa  and  bread  and  butter,  proceeding  towards  her 
chair  by  a  circuitous  route ;  but  it  was  stated  to  have  been  his 
habit  to  serve  his  visitors  himself,  and  not  to  allow  them  to 
rise  from  their  chairs.  "When  Mrs.  Downing  had  drunk  about 
half  of  her  second  cup,  she  complained  of  sickness  and  went 
home,  where  she  was  seized  with  retching  and  vomiting,  at- 
tended with  frequent  cramps ;  and  then  a  violent  purging  took 
place,  and  at  eight  o'clock  the  next  morning  she  died.  None 
of  the  other  persons  who  had  been  present  on  either  of  these 
occasions   were  taken   ill.     To   a  physician  called   in  by  the 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    421 

prisoner  two  or  three  hours  before  her  death,  he  stated  that  she 
had  had  an  attack  of  cholera  morbus.  The  nervous  coat  of  the 
stomach  was  found  to  be  partially  inflamed  or  stellated  in  sev- 
eral places,  and  the  villous  coat  was  softened  by  the  action  of 
some  corrosive  substance;  the  blood-vessels  of  the  stomach 
were  turgid,  and  the  intestines,  particularly  near  the  stomach, 
inflamed.  The  contents  of  the  stomach  were  placed  in  a  jug, 
in  a  room  to  which  the  prisoner  (to  whom  at  that  time  no  sus- 
picion attached)  had  access,  for  examination,  but  he  clandes- 
tinely threw  them  into  another  vessel  containing  a  quantity  of 
w^ater.  The  prisoner  proposed  that  the  body  should  be  in- 
terred on  the  following  Wednesda}^,  assigning  as  a  reason  for 
so  early  an  interment  that  from  the  state  of  the  corpse  there 
would  be  danger  from  keeping  it  longer.  This  rejjresentation 
was  entirely  untrue.  He  also  evinced  much  eagerness  to  ac- 
celerate the  funeral,  urging  the  person  who  had  the  charge  of 
it  and  the  men  who  were  emploj'^ed  in  making  the  vault  to  un- 
usual exertions.  The  physician  called  in  to  the  deceased  con- 
cluded, from  the  symptoms,  the  shortness  of  the  illness,  and 
the  morbid  appearances,  that  she  had  died  from  the  effect  of 
some  active  poison;  and  in  order  to  discover  the  particular 
poison  supposed  to  have  been  used,  he  applied  to  the  contents 
of  the  stomach  the  tests  of  the  ammoniacal  sulphate  of  copper, 
or  common  blue  vitriol,  and  the  ammoniacal  nitrate  of  silver, 
or  lunar  caustic,  in  solution,  which  severally  yielded  the  charac- 
teristic appearances  of  arsenic,  the  sulphate  of  copper  produc- 
ing a  green  precipitate,  Avhereas  a  blue  precipitate  is  formed  if 
no  arsenic  is  present,  and  the  nitrate  of  silver  producing  a 
yellow  precipitate,  instead  of  a  white  precipitate,  resulting  if 
no  arsenic  is  present.  He  stated  that  he  considered  these  tests 
conclusive  and  infallible,  and  that  he  had  used  them  because 
they  would  detect  a  minuter  ]iortion  of  arsenic ;  on  which  ac- 
count he  considered  them  to  be  more  proper  for  the  occasion, 
as,  from  the  smallness  of  the  quantity,  from  the  frequent  vom- 
itings and  purgings,  and  the  apjiearances  of  the  tests,  he  found 
there  could  not  be  much.  Concluding  that  bile  had  been  taken 
into  the  stomach,  he  mixed  some  bile  with  water,  and  applied 
to  the  mixture  the  same  tests,  but  found  no  indication  of  the 
presence  of  arsenic  ;  from  which  he  inferred  that  the  presence 
of  bile  would  not  alter  the  conclusion  Avhich  he  had  previously 
draAvn.     Having  been  informed  that  the  deceased  had  eaten 


422    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

onions,  he  boiled  some  in  water ;  and  after  pouring  off  the 
water  in  which  they  were  boiled,  he  poured  boiUng  water  over 
them  and  left  them  standing  for  some  time,  after  which  he  ap- 
plied the  same  tests  to  the  solution  thus  procured,  and  ascer- 
tained that  it  did  not  produce  the  characteristic  appearances  of 
arsenic.  The  witness,  upon  his  cross-examination,  admitted 
that  the  symptoms  and  appearances  were  such  as  might  have 
been  occasioned  by  some  other  cause  than  poisoning ;  that  the 
reduction  test  would  have  been  infallible ;  and  that  it  might 
have  been  adopted  in  the  first  instance,  and  might  also  have 
been  tried  upon  the  matter  which  had  been  used  for  the  other 
experiments.  Upon  his  re-examination  he  accounted  for  his 
omission  of  the  reduction  test  by  stating  that  the  quantity  of 
matter  left  after  the  frequent  vomitings  and  the  other  experi- 
ments would  have  been  too  small,  and  that  it  would  not  have 
been  so  correct  to  use  the  matter  which  had  been  subjected  to 
the  preceding  ex]:)eriments. 

Several  medical  witnesses  called  on  the  part  of  the  prisoner 
stated  that  the  sj^mptoms  and  morbid  appearances,  though 
they  were  such  as  might  and  did  commonly  denote  poisoning, 
did  not  exclude  the  possibility  that  death  might  have  been  oc- 
casioned by  cholera  morbus  or  some  other  disease ;  that  the 
tests  which  had  been  resorted  to  Avere  fallacious,  since  they  had 
produced  the  same  characteristic  appearances  ujDon  their  appli- 
cation to  innocent  matter,  namely,  the  sulphate  of  copper  a 
green,  and  the  nitrate  of  silver  a  yellow  precipitate,  on  being 
applied  to  an  infusion  of  onions  ;  and  that  the  experiment  with 
the  bile  was  also  fallacious,  since  from  the  presence  of  phos' 
phoric  acid,  which  is  contained  in  all  the  fluids  of  the  human 
body,  the  same  colored  precipitate  would  be  thrown  down  by 
putting  lunar  caustic  into  a  solution  of  phosphate  of  soda. 
The  learned  judge,  in  his  charge  to  the  jury,  said  that  none  of 
the  evidence  of  the  witnesses  for  the  prisoner  went  to  show 
that  the  tests  employed  by  the  medical  witnesses  on  the  other 
side  would  not  prove  that  arsenic  was  there  if  it  were  really 
there ;  that  the  experiments  made  by  the  witnesses  for  the 
prisoner  were  made  with  onions  in  a  different  state  from  what 
onions  boiled  with  rabbits  are,  as  by  that  mode  could  be  got  a 
great  jwrtion  of  the  juice  or  strength  of  the  onions,  in  water, 
whereas  in  regard  to  onions  prepared  for  the  table,  or  boiled 
with  a  considerable  quantity  of  water,  a  good  portion  of  their 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    423 

juice  is  witlidrawn  from  them  ;  that  as  to  the  experiment  Avith 
the  bile,  if  there  were  no  phosphoric  acid  in  the  stomach  of  the 
deceased,  or  no  quantity  of  it  sufficient  to  produce  that  appear- 
ance, whatever  might  have  been  the  appearance  if  suificient 
were  put  in,  then  the  experiment  was  tried  on  something  that 
did  not  contain  a  sufficient  quantity  of  that  matter ;  that  al- 
though the  same  result  might  be  produced  by  that  matter  if 
there,  jet  if  there  is  no  reason  to  suppose  that  that  matter  was 
there,  or  there  in  sufficient  quantity,  then  he  thought  the  sus- 
picion that  arsenic  was  there  was  ver}^  strong.  His  lordship 
also  said,  "  If  the  evidence  as  to  the  opinions  of  the  learned 
persons  who  have  been  examined  on  both  sides  should  lead  you 
to  doubt  whether  joii  should  attribute  the  death  of  the  de- 
ceased to  arsenic  having  been  administered  to  her,  or  to  the 
disease  called  cholera  morlus,  then  as  to  this  question  as  well 
as  to  the  other  question  the  conduct  of  the  prisoner  is  most 
material  to  be  taken  into  consideration  ;  for  he,  being  a  medi- 
cal man,  could  not  be  ignorant  of  many  things  as  to  which 
ignorance  might  be  shown  in  other  persons  :  he  could  hardly 
be  ignorant  of  the  proper  mode  of  treating  cholera  morbus  ;  he 
could  not  be  ignorant  that  an  early  burial  was  not  necessary ; 
and  when  an  operation  was  to  be  performed  in  order  to  dis- 
cover the  cause  of  the  death,  he  should  not  have  shown  a 
backwardness  to  acquiesce  in  it ;  and  when  it  was  performing, 
and  he  attending,  he  could  not  sm^ely  be  ignorant  that  it  was 
material  for  the  purposes  of  the  investigation  that  the  contents 
of  the  stomach  should  be  preserved  for  minute  examination."  ^ 
His  lordship  also  said,  "  The  conduct  of  the  prisoner,  his  eager- 
ness in  causing  the  body  to  be  put  into  a  shell,  and  afterwards 
to  be  speedily  interred,  was  a  circumstance  most  material  for 
their  consideration,  with  reference  to  both  the  questions  he 
had  stated ;  for  although  the  examination  of  the  body  in  the 
Avay  set  forth,  and  the  experiments  that  were  made,  might  not 
lead  to  a  certain  conclusion  as  to  the  charge  stated,  that  the 
deceased  got  her  death  by  poison  acbninistered  to  her  by  the 
prisoner,  yet  if  the  prisoner  as  a  medical  man  had  been  so 
wicked  as  to  administer  that  poison,  he  must  have  known  that 
the  examination  of  the  body  would  divulge  it.''^  Notwith- 
standing this  adverse  charge  of  the  learned  judge,  the  prisoner 
was  acquitted. 

1  Frazers  Short-hand  Rep.  161.  a  Id.  170. 


424    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

A  medical  man  was  tried  for  the  murder  of  his  wife,  by  the 
administration  of  prussic  acid.  They  left  their  place  of  resi- 
dence at  Sunderland,  on  a  journey  of  pleasure  to  London, 
where  they  arrived  on  the  4:th  of  June,  and  went  into 
lodgings.  On  the  morning  of  the  8th,  being  the  Satur- 
day after  their  arrival  in  town,  the  prisoner  rang  the 
bell  for  some  hot  Avater,  a  tumbler,  and  a  spoon,  and  he  and 
his  wife  were  heard  conversing  in  their  chamber.  About  a 
quarter  before  eight  he  called  the  landlady  upstairs,  saying 
that  his  wife  was  very  ill,  and  she  found  her  lying  motionless 
on  the  bed,  with  her  eyes  shut  and  her  teeth  closed,  and  foam- 
ing at  the  mouth.  The  prisoner  said  she  had  had  fits  before, 
but  none*  like  this,  and  that  she  would  not  come  out  of  it ;  and 
on  being  urged  to  send  for  a  doctor,  he  said  he  was  a  doctor 
himself,  and  should  have  let  blood  before,  but  that  there  was 
no  pulse,  and  that  this  was  an  affection  of  the  heart,  and  that 
her  mother  died  in  the  same  way  nine  months  before,  and  he 
put  her  feet  and  hands  in  warm  Avater,  and  applied  a  mustard 
plaster  to  her  chest.  In  the  meantime  a  medical  man  Avas  sent 
for,  but  she  died  before  his  arrival.  There  was  a  tumbler  close 
to  the  head  of  the  bed,  about  one-third  full  of  a  clear  white 
fluid,  and  an  empty  tumbler  on  the  other  side  of  the  table, 
and  a  paper  of  Epsom  salts.  In  reply  to  a  question  from  the 
medical  man,  the  prisoner  stated  that  the  deceased  had  taken 
nothing  but  a  little  salts.  On  the  same  morning  he  ordered  a 
grave  for  interment  on  the  Tuesday  folloAving.  The  contents 
of  the  stomach  were  found  to  contain  prussic  acid  and  Epsom 
salts  ;  and  it  was  deposed  that  the  symptoms  Avere  similar  to 
those  of  death  by  prussic  acid,  but  they  might  be  the  effect  of 
any  pOAverful  sedative  poison,  and  that  the  means  resorted  to 
by  the  prisoner  were  not  likely  to  promote  recovery,  but  that 
artificial  respiration  and  stimulants  were  the  appropriate  reme- 
dies, and  might  probably  have  been  effectual.  The  prisoner  had 
purchased  prussic  acid  and  acetate  of  morphine  on  the  previous 
day,  from  a  vender  of  medicines  Avith  whom  he  AA-as  intimate, 
and  he  had  been  in  the  habit  of  using  these  poisons,  under  ad- 
vice, for  a  complaint  in  the  stomach.  Tavo  days  after  the 
fatal  event,  he  stated  to  the  medical  man  Avho  had  been  called 
in  that  on  the  morning  in  question  he  Avas  about  to  take  some 
prussic  acid ;  that  on  endeavoring  to  remove  the  stopper  he 
had  some  difficulty,  and  used  some  force  Avith  the  handle  of  a 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    495 

tooth  brush ;  that  the  neck  of  the  bottle  was  broken  by  the 
force,  and  some  of  the  acid  spilt  ,•  that  he  placed  the  remainder 
in  the  tumbler,  and  went  into  a  front  room  to  fetch  a  bottle 
in  which  to  place  the  acid,  but  instead  of  doing  so,  began  to 
write  to  his  friends  in  the  country,  when  in  a  few  minutes  he 
heard  a  scream  from  his  wife's  bedroom  ;  that  he  immediately 
went  to  her  ;  that  she  exclaimed  that  she  had  taken  some  hot 
drink,  and  called  for  cold  water,  and  that  the  prussic  acid  was 
undoubtedly  the  cause  of  her  death.  Upon  being  asked  what 
he  had  done  with  the  bottle,  he  said  he  had  destro^^ed  it,  and 
assigned  as  the  reason  why  he  had  not  mentioned  the  circum- 
stances before,  that  he  was  distressed  and  ashamed  at  the  con- 
sequences of  his  negligence.  According  to  the  opinions  of  the 
medical  witnesses,  after  the  scream  or  shriek,  volition  and  sen- 
sibility must  have  ceased,  and  speech  would  have  been  im- 
possible. To  various  persons  in  the  north  of  England  the 
prisoner  wrote  false  accounts  of  his  wife's  state  of  health. 
In  one  of  them,  dated  from  the  Euston  Hotel,  the  6th  of 
June,  he  stated  that  she  was  unwell,  and  had  two  medical 
gentlemen  attending  her,  and  that  he  was  apprehensive  of  a 
miscarriage.  In  another,  dated  the  8th,  he  stated  that  he  had 
had  her  removed  to  private  lodgings,  where  she  was  under  the 
care  of  two  medical  men,  dangerously  ill ;  that  symptoms  of 
premature  labor  had  come  on,  and  that  one  of  the  medical 
men  pronounced  her  heart  to  be  diseased.  At  the  date  of  this 
letter  his  wife  was  cheerful  and  well,  and  all  these  statements 
respecting  her  health  were  false ;  and  in  fact  they  had  gone 
into  lodgings  on  their  arrival  in  London  on  the  4th.  In  a 
letter,  dated  the  9th,  he  stated  the  fact  of  her  death,  but  with- 
out any  allusion  to  the  cause  of  it ;  which  suppression,  in  a  sub- 
sequent letter,  he  stated  to  have  been  caused  by  the  desire  of 
concealing  the  shame  and  reproach  of  his  negligence.  Ilis 
statement  to  his  landlady  that  his  mother-in-law  had  died  from 
disease  of  the  heart  was  a  falsehood,  he  himself  having  certi- 
fied to  the  registrar  of  burials  that  bilious  fever  was  the  cause 
of  her  death.  The  deceased  was  entitled  to  some  leasehold 
property,  to  which  the  prisoner  would  become  entitled  abso- 
lutely if  he  survived  her,  and  to  a  copyhold  estate  which  was 
limited  to  the  joint  use  of  herself  and  her  husband,  so  that  the 
survivor  would  take  the  absolute  interest.  The  motive  sug- 
gested for  the  commission  of  the  alleged  murder  was,  that  the 


426    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

prisoner  might  become  at  once  the  absolute  owner  of  his  wife's 
property. 

]\Ir.  Baron  Gurney  said  that  this  case  differed  from  almost 
every  other  case  he  had  ever  known,  in  this  circmnstance,  that 
generally  there  was  a  difficulty  in  ascertaining  whether  the 
death  had  been  caused  by  poison,  and  whether  the  poison  came 
from  the  hands  of  the  person  charged  wdth  the  crime ;  but  that 
in  this  case  there  could  be  no  doubt  that  the  deceased  had 
come  to  her  death  by  a  poison,  most  certain,  fatal,  and  speedy 
in  its  effects,  and  that  it  was  equally  certain  that  it  came  from 
the  hands  of  the  prisoner.  It  had  been  proved  beyond  all 
doubt  that  the  prisoner  had  bought  the  poison,  and  had  placed 
or  left  it  unprotected  in  t]ie  chamber  of  his  wife,  and  the 
question  was,  whether,  she  having  died  from  poison,  it  had  been 
administered  to  her  by  his  hand,  or  whether  he  had  purposely 
placed  it  in  her  way  in  order  that  she  might  herself  take  it. 
The  secrets  of  all  hearts  were  known  to  God  alone,  and  human 
tribunals  could  only  judge  of  those  secrets  from  the  conduct  of 
the  individual  at  the  time.  In  this  case,  the  jur}^  had  the  con- 
duct of  the  prisoner,  his  words,  his  writing,  his  demeanor, 
proved  before  them,  and  it  would  be  for  them  to  decide,  upon 
the  whole  case,  whether  they  believed  he  had  administered  the 
poison,  or  placed  it  within  the  reach  of  the  deceased  in  order 
that  she  might  take  it.  If  he  had  done  either  of  those  things, 
he  would  be  guilty  of  murder  ;  if  they  thought  he  had  acted 
incautiously  and  negligently  by  leaving  the  poison  in  the  way 
he  had  done,  he  had  not  been  guilty  of  murder.  He  dwelt 
upon  the  circumstances  that  the  parties  had  lived  for  a  year 
and  a  half  together  upon  terms  of  mutual  affection,  that  the 
marriage  took  place  with  the  consent  of  the  lady's  mother,  with 
whom  they  had  lived  till  her  death,  that  the  visit  to  London  was 
well  known  to  their  friends,  and  that  the  place  to  which  she  was 
taken  was  where  he  had  lodged  before,  and  near  the  residence  of 
the  only  two  persons  with  whom  he  was  acquainted  in  London. 
When  any  person  committed  a  heinous  crime  it  was  usual  and 
natural,  said  the  learned  judge,  to  look  whether  there  existed 
any  adequate  motive  to  the  commission  of  it.  The  prisoner 
being  about  thirty,  and  his  wife  about  twenty-two  years  of  age, 
it  would  be  a  good  deal  to  say  that  the  desire  to  possess  her 
property  should  be  brought  forward  as  a  great  motive  of  interest 
to  excite  to  the  commission  of  such  a  crime.     Nevertheless,  it 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    427 

was  sometimes  found,  as  they  could  not  dive  into  the  heart  and 
ascertain  motives,  that  a  grave  crime  might  be  committed,  al- 
though no  motive  for  it  could  be  found.  Inasmuch  as  the  great 
question  the  jury  had  to  decide  was  the  intention  of  the  prisoner, 
it  should  be  remembered  that  a  man  was  entitled  to  a  candid 
construction  of  his  words  and  actions,  particularly  if  placed 
in  circumstances  of  great  and  unexpected  difficulty,  and  they 
would  take  care  to  give  what  fair  allowance  they  could  in 
putting  a  construction  upon  the  prisoner's  words  and  actions. 
He  also  laid  stress  upon  the  conduct  of  the  prisoner  to  his  wife, 
and  his  general  good  character  for  kindness.  He  could  not 
conceive  the  motive  which  should  have  induced  the  prisoner,  in 
the  letter  posted  on  the  Gth,  when  his  wife  was  well  and  cheer- 
ful, to  write  so  complete  a  fabrication,  from  beginning  to  end, 
of  her  being  unwell  and  attended  by  two  medical  men,  and 
the  jury  would  observe  that  it  was  written  on  the  very  day 
on  which  the  prisoner  had  made  arrangements  for  her  residence 
with  a  friend,  during  his  absence  abroad.  When  the  letter  of 
the  8th  was  written  did  not  appear,  but  it  was  proved  to  have 
been  posted  on  the  evening  of  that  day.  If  it  was  written  before 
the  death,  it  told  against  the  prisoner.  It  concurred  with  the 
letter  written  on  the  Gth,  and  practised  the  same  deception, 
as  to  the  two  medical  men,  upon  those  to  whom  it  was  ad- 
dressed. The  defence  was,  that  the  prisoner  had  been  guilty 
of  a  lamentable  indiscretion  ;  tliat  a  sudden  event,  fatal  to  his 
wife,  had  happened ;  that  he  was  overpowered  and  overwhelmed 
by  the  result  of  his  own  carelessness,  and  that  he  did  not  like 
to  divulge  the  truth.  The  awkward  fact,  however,  was,  that 
in  his  last  letter  he  had  pursued  exactly  the  same  system  as  that 
adopted  in  the  letter  written  two  days  before.  They  would 
recollect,  with  reference  to  the  letter  of  the  8th,  that  on  that 
day  he  had  more  than  once  exclaimed,  "  This  is  all  my  fault." 
These  outbreaks  were  of  some  importance  for  the  consideration 
of  the  jury  in  giving,  as  compared  with  the  letters,  all  indulgent 
consideration  to  any  language  used  by  the  prisoner,  after  an 
event  had  occurred  which  placed  him  in  a  situation  of  difficulty 
and  embarrassment.  In  comparing  the  statement  set  up  for 
the  defence  with  the  evidence  of  the  medical  witnesses,  two 
things  were  of  a  good  deal  of  importance.  The  prisoner's 
statement  was,  that  Avhcn  he  entered  the  bed-chamber,  his  wife 
told  him  what  had  occurred,  and  that  he  took  the  tumbler  out 


428    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

of  her  hand.  The  medical  men  had  told  the  jury  that  with  the 
scream  that  had  been  spoken  of,  all  volition  and  power  of 
speech  would  cease ;  but  here  it  must  not  be  forgotten  that  the 
judgment  of  these  gentlemen  must  be  received  with  this  caution, 
that  none  of  them  had  ever  witnessed  the  effect  of  prussic  acid 
on  the  human  frame.  It  was  for  the  jury  to  decide  Avhether 
they  were  convinced,  beyond  any  reasonable  doubt,  that  the 
prisoner  either  administered,  or  in  effect  caused  to  be  adminis- 
tered, poison  to  the  deceased ;  if  on  the  other  hand  they  should 
be  of  opinion  that  he  had  been  merely  guilty  of  indiscretion,  and 
that,  in  consequence  of  the  sudden  and  awful  event  which  had 
occurred,  he  had  been  driven  to  conceal  it  by  falsehood,  they 
would  acquit  him.  Ko  doubt,  falsehood  often  placed  persons 
having  recourse  to  it  under  awkward  and  menacing  circum- 
stances. In  this  case,  f  alseliood  had  been  much  resorted  to.  It 
was  shown  before  the  death,  in  the  statement  about  the  two 
medical  men ;  that  falsehood  Avas  followed  up  and  repeated  in 
the  second  letter ;  another  falsehood  appeared  in  the  represen- 
tation that  his  mother-in-law,  who  had  died  of  bilious  fever,  as 
appeared  by  an  entry  in  the  register  under  his  own  hand,  had 
died  of  disease  of  the  heart.  If  they  thought  the  case  conclusive, 
however  painful  it  might  be,  it  would  be  their  duty  to  pro- 
nounce the  prisoner  guilty  ;  but  if  they  thought  it  left  in  doubt 
and  mystery,  so  that  they  could  not  safely  proceed,  they  would 
remember  that  it  was  better  that  many  guilty  men  should 
escape  than  that  one  innocent  man  should  perish.  The  prisoner 
was  acquitted.^ 

Palmer's  case  is  one  of  the  most  remarkable  ones  of  this 
nature  on  record.  The  prisoner  had  been  a  medical  practi- 
tioner, but  had  given  up  his  profession  for  the  pursuits  of  the 
turf,  in  the  course  of  which  he  became  intimate  Avith  a  young 
man  named  Cook,  who  was  addicted  to  the  same  pursuits.  By 
his  extensive  gambling  transactions  he  became  involved  in  great 
pecuniary  difficulties,  and  was  ultimately  driven  to  the  desper- 
ate expedient  of  borroAving  money  at  exorbitant  rates  of  in- 
terest, and  to  the  commission  of  forgeries  on  a  large  scale.  In 
1855  ho  Avas  indebted  in  about  £20,000,  borroAved  at  sixty  per 
cent,  interest  upon  bills,  all  of  Avhich  bore  the  forged  acceptances 
of  his  mother,  and  secured  in  part  by  the  assignment  of  a  policy 
of  assurance  for  £13,000  on  the  life  of  his  brother,  Avho  died  in 
1  Reg.  V.  Belaney,  C.  C.  C,  Aug.  1844. 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    429 

August  of  that  year.  To  this  source  the  prisoner  had  looked 
for  relief  from  his  embarrassments,  but  the  office  having  become 
acquainted  with  circumstances  which  induced  them  to  dispute 
the  validity  of  the  policy  on  the  ground  of  fraud,  declined  to 
pay  the  sum  assured  ;  and  in  consequence  the  holder  of  some 
of  these  bills  issued  writs  against  the  prisoner  and  his  mother, 
which  was  sent  into  the  countr}^  to  be  served  unless  lie  should 
effect  some  satisfactory  arrangement.  Exposure,  ruin,  and  pun- 
ishment thus  became  imminent,  miless  some  means  could  be 
devised  of  averting  the  impending  disclosures.  On  the  13th  of 
November  Cook  won,  by  one  of  his  horses  and  by  bets  at 
Shrewsbury  races,  between  £2,000  and  £3,000,  of  which  he  re- 
ceived £700  or  £800  on  the  course  ;  the  remainder  was  payable 
in  London,  on  Monday,  the  18th.  lie  was  greatly  excited  by 
his  success,  and  the  prisoner  and  several  other  persons  spent 
the  following  evening  with  him,  after  the  conclusion  of  the 
races,  at  his  inn  in  Shrewsbury.  In  the  course  of  the  evening 
the  prisoner  was  seen  in  the  passage  outside  of  his  own  room, 
holding  up  a  tumbler  to  a  gaslight ;  after  which  he  went,  with 
the  tumbler  in  his  hand,  into  the  room  where  Cook  and  his 
other  friends  were  sitting.  Soon  afterAvards,  on  drinking  some 
brandy  and  water,  Cook  became  suddenly  ill,  with  violent 
vomiting,  and  it  was  necessary  to  caU  in  medical  assistance. 
He  said  he  had  been  dosed  by  the  prisoner,  and  handed  the 
mone}"  he  had  about  him,  between  £700  and  £800,  to  a  friend  to 
take  care  of,  who  returned  it  to  him  the  next  morning,  after 
his  recovery.  Notwithstanding  these  suspicious  circumstances, 
such  was  the  prisoner's  influence  over  his  infatuated  victim, 
that  Cook  returned  from  Shrewsbury  to  Rugeley  in  compan}^ 
with  him  on  the  evening  of  Thursday,  the  14:th,  when,  on  their 
arrival,  the  former  went  to  his  lodgings  at  the  Talbt)t  Arms, 
and  the  prisoner  to  his  own  house  opposite.  On  the  Saturday 
and  Sunday  the  prisoner  called  many  times  to  see  Cook,  who 
was  repeatedl}^  taken  sick  and  ill  after  taking  coffee  and  broth 
from  the  hands  of  the  prisoner.  (Jn  Monday  (the  18th)  he  got 
up  much  better ;  and  the  prisoner  called  upon  him  early  in  the 
morning,  but  did  not  see  him  again  until  eight  and  nine  in  the 
evening,  having  in  the  interim,  as  it  turned  out,  been  to  Lon- 
don. In  the  course  of  that  evening  Cook's  medical  attendant, 
who  had  previously  seen  him,  left  at  the  Talbot  Arms  a  box  of 
morphine  piDs,  which  was  taken  into  his  bedroom  and  admin- 


430   CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

istered  by  the  prisoner,  soon  after  which  the  household  was 
disturbed  by  screams  proceeding  from  the  patient's  room,  who 
was  found  sitting  up  in  bed,  in  great  agony,  beating  the  bed- 
clothes, gasping  for  breath,  convulsed  with  a  jerking  and  twitch- 
ing motion  all  over  his  body,  and  one  hand  clenched  and  stiff, 
but  conscious,  and  calling  to  those  about  him  to  send  for  the 
prisoner.  In  about  half  an  hour  the  paroxysm  subsided,  and 
he  became  composed.  On  the  morning  of  Tuesday  (the  19th), 
after  taking  coffee  from  the  hand  of  the  prisoner.  Cook  was 
again  affected  with  violent  vomiting,  which  continued  through- 
out the  day  ;  but  in  the  evening  was  better,  and  in  good  spirits. 
About  seven  o'clock  he  was  visited  by  his  medical  attendant, 
and  the  prisoner  urged  him  to  repeat  the  morphine  pills,  as  on 
the  night  before  ;  and  they  went  together  to  the  surgery, 
where  i)ills  were  prepared  and  delivered  to  the  prisoner,  who 
took  them  away,  and  went  to  Cook's  room  about  eleven  o'clock, 
as  was  intended  and  supposed,  for  the  purpose  of  administering 
them  to  him ;  so  that  he  had  the  opportunity  in  the  interval  of 
changing  them,  which  there  can  be  no  doubt  he  did.  Cook 
strongly  objected  to  take  them,  because  he  had  been  made  so 
ill  the  night  before ;  but  his  objections  were  overcome  by  the 
prisoner,  and  at  length  he  swallowed  the  pills  presented  to  him. 
Soon  after  midnight  he  became  ill  with  the  same  agonizing 
symptoms  as  on  the  preceding  night,  and  again  desired  that  the 
prisoner  should  be  sent  for.  Such  was  the  rigidity  of  his  hmbs 
that  it  was  found  impossible  to  raise  him  up,  and  he  asked  to 
be  turned  over  on  his  side ;  after  which  the  action  of  the  heart 
gradually  ceased,  and  in  a  quarter  of  an  hour  he  was  a  corpse. 
When  dead,  the  body  Avas  bent  back  like  a  bow,  and  if  it  had 
been  placed  upon  a  level  surface,  it  would  have  rested  upon  the 
head  and  heels.  Upon  receiving  information  of  the  young 
man's  death,  his  stepfather,  who  lived  in  London,  went  to 
Eugeley  on  Friday,  the  22d,  to  make  arrangements  for  his 
funeral,  and  to  inquire  into  the  state  of  his  affairs,  as  well  as  into 
the  circumstances  of  his  illness.  On  stating  to  the  prisoner 
that  he  understood  he  knew  something  of  his  affairs,  he  told 
him  that  there  were  £4,000  worth  of  bills  of  the  deceased's  out, 
to  which  his  name  was  attached,  and  that  he  had  got  a  paper 
drawn  up  by  a  lawyer,  signed  by  the  deceased,  to  shoAV  that  he 
had  never  received  any  benefit  from  them.  The  stepfather 
then  inquired  if  there  were  no  sporting  debts  owing  to  him,  to 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES,    431 

which  the  prisoner  said  there  Avas  nothing  of  the  sort ;  and  on 
asking  about  the  betting-book,  which  coukl  not  be  found,  the 
prisoner  said  it  would  be  of  no  use  if  found,  as  when  a  man 
dies,  his  bets  are  done  with.  Other  facts  now  began  to  trans- 
pire throwing  a  sinister  light  upon  the  mysterious  events  of 
the  last  few  days.  It  was  discovered  that  the  prisoner  had 
procured  three  grains  of  strychnia  on  the  evening  of  Monday, 
and  a  second  quantity  of  six  grains  on  the  following  day ;  that 
he  had  been  seen  to  search  the  pockets,  and  under  the  pillow 
and  bolster  of  the  unfortunate  man  before  his  body  was  cold  ; 
that  although  his  betting-book  was  kept  on  the  dressing-table 
of  the  deceased's  bedroom,  and  was  seen  there  on  the  preA^ous 
night,  it  was  never  seen  after  his  death ;  that  the  prisoner 
handed  to  a  friend  of  the  deceased  five  guineas  as  the  whole  of 
the  money  that  was  found  belonging  to  him  ;  that  he  had  been 
to  London  on  Monday,  the  day  before  the  death,  and  procured 
payment  of  upwards  of  £1,000  on  account  of  the  wagers  won  by 
the  deceased  at  Shrewsbury,  and  appropriated  the  amount  in 
payment  of  his  own  losses,  and  in  part  payment  of  the  forged 
acceptances  on  which  writs  had  been  issued ;  that  before  the 
races  he  was  short  of  money,  and  had  borrowed  £25,  and  lost 
largely  at  the  races,  but  had  subsequently  paid  considerable 
suras  to  various  other  creditors ;  that  two  or  three  days  after 
Cook's  death  he  had  endeavored  to  obtain  the  attestation  by 
an  attorney  to  a  forged  acknowledgment  in  the  name  of  the 
deceased  that  £-i,000  of  bills  had  been  negotiated  by  the  pris- 
oner for  his  benefit,  and  finally  had  prevailed  upon  the  medical 
man  who  had  attended  the  deceased,  who  was  of  a  very 
advanced  age,  to  certify  that  he  had  died  of  apoplexy.  A 
posPmortem  examination  was  made,  at  which  the  prisoner  was 
present,  and  the  stomach  and  intestines  were  placed  in  a  jar  to 
be  taken  to  London  for  examination.  While  the  operation  was 
going  on,  the  prisoner  pushed  against  the  medical  men  engaged 
in  it,  so  as  to  shake  a  portion  of  the  contents'  of  the  stomach 
into  the  body.  The  jar  was  then  covered  with  parchment,  tied 
down,  and  sealed  and  placed  aside  ;  and  while  the  attention  of 
the  medical  men  was  still  engaged  in  examining  the  body,  the 
prisoner  removed  the  jar  to  a  distance  near  a  door  not  the 
usual  way  out  of  the  room,  and  it  was  found  that  two  slits  had 
been  cut  with  a  knife  through  the  double  skin  Avhich  formed 
the  covering.     The  prisoner  having  learned  that  the  jar  was  to 


432    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

be  sent  to  London  the  same  evening,  offered  the  driver  who 
was  to  carry  the  persons  in  charge  of  it  to  the  railway  station 
£10  to  upset  the  carriage  and  break  the  jar.  The  analytical 
chemists  to  whom  the  stomach  and  intestines,  and  subsequently 
other  parts  of  the  body  were  sent,  found  traces  of  antimony, 
but  none  of  str^'chnia,  or  any  other  poison ;  and  sent  their 
i^eport  by  post,  directed  to  the  attorney  at  Eugeley  employed 
in  the  investigation.  The  prisoner  incited  the  postmaster  to 
betray  to  him  the  contents  of  this  report ;  and  wrote  a  confi- 
dential letter  to  the  coroner,  to  whom  during  the  course  of  the 
inquiry  he  sent  presents  of  fish  and  game,  stating  that  he  had 
seen  it  in  black  and  white  that  no  strychnia,  prussic  acid,  or 
opium  had  been  found,  and  expressing  his  hope  that  on  the 
next  day,  to  v\"hich  the  inquest  stood  adjourned,  the  verdict 
would  be  that  of  death  from  natural  causes.  The  coroner's 
jury  found  a  verdict  of  wilful  murder  against  the  prisoner. 
Upon  the  trial  the  chemical  witnesses  examined  on  the  part  of 
the  prosecution  stated  that  the  stomach  and  intestiues  were 
received  in  an  unfavorable  state  for  finding  strychnia  had  it 
been  there,  the  stomach  having  been  cut  from  end  to  end,  and 
the  contents  gone,  and  the  mucous  surface,  in  which  any  poison, 
if  present,  would  be  found,  lying  in  contact  with  the  intestines 
and  their  succulent  contents,  and  shaken  together ;  that  the 
non-discovery  of  strychnia  was  not  conclusive  that  death  had 
not  been  caused  by  that  poison,  inasmuch  as  they  had  failed  to 
discover  it  in  animals  killed  for  the  purpose  of  experiment ; 
that  if  a  minimum  dose  is  administered,  it  disappears  by  absorp- 
tion into  the  blood,  but  that  it  is  discoverable,  and  had  been 
discovered,  when  administered  to  animals  in  excess  of  the 
quantity  required  to  destroy  life,  and  that  there  is  no  known 
process  by  which  it  can  be  discovered  in  the  tissues,  if  present 
there  only  in  a  small  quantity.  On  the  other  hand,  witnesses 
were  called  on  behalf  of  the  prisoner,  who  disputed  the  theory 
of  absorption,  and  stated  that  strychnia,  if  present,  is  always 
discoverable,  not  only  in  the  blood  and  in  the  stomach  and  in- 
testines and  their  contents,  but  also  in  the  tissues  ;  that  there 
was  nothing  in  the  condition  of  the  parts  of  the  body  submitted 
to  examination  to  preclude  the  detection  of  strychnia ;  and 
that  if  present  it  might  have  been  found,  even  if  it  had  been 
administered  in  a  minimum  dose,  though  on  this  latter  point 
there  was  some  difference  of  opinion  among  them.     Numerous 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    433 

mediGal  witnesses  of  the  highest  professional  experience  and 
character,  called  on  the  part  of  the  Cro^Ti,  deposed  that  many 
of  the  symptoms,  especially  in  the  progress  and  termination  of 
the  attack,  were  not  those  of  any  of  the  ordinary  forms  of 
tetanus,  idiopathic  or  traumatic,  or  of  any  known  disease  of  the 
human  frame,  but  were  the  peculiar  characteristics  of  poison 
ing  by  strychnia.  Kor  were  there  in  these  respects  any  such 
differences  between  their  opinions  and  those  of  many  respect- 
able professional  witnesses  called  on  the  part  of  the  prisoner,  as 
might  not  be  accounted  for  by  the  imperfect  state  of  knowledge 
of  all  the  forms  of  tetanic  affection,  or  by  the  obscurities  of 
physiological  and  pathological  science.  Of  the  numerous  pro- 
fessional "witnesses  examined  on  behalf  of  the  prisoner,  some 
ascribed  the  symptoms  to  tetanic  affection  ;  others  of  them  to 
various  forms  of  disease  from  which  they  were  shown  to  be 
clearly  distinguishable  ;  while  others  again  ascribed  them  to 
physical  causes  absolutely  absurd  and  incredible.  The  contra- 
dictions and  inconsistencies  in  the  testimony  of  some  of  the 
prisoner's  witnesses,  and  their  obtrusive  zeal  and  manifest  pur- 
pose of  obtaining  an  acquittal,  deprived  it  of  all  moral  effect, 
and  drew  down  upon  several  of  them  the  severe  reprehension 
of  the  court.  After  a  protracted  trial  of  twelve  days,  the  pris- 
oner was  found  guilty,  and  was  executed  pursuant  to  his  sen- 
tence ;  ^  and  there  is  no  doubt  that  this  was  only  one  of  several 
murders  perpetrated  by  this  gi'eat  criminal,  by  the  same  nefar- 
ious means,  for  the  purpose  of  obtaining  money  secured  by 
fraudulent  life  assurances.^ 

In  March,  1882,  George  Henry  Lawson,  a  surgeon,  was  in- 
dicted for  the  wilful  murder  of  his  brother-in-law,  Percy  Mal- 
colm John,  Percy  John  was  a  cripple  with  curvature  of  the 
spine  and  paraplegia.  He  had  property  to  the  extent  of  £3,000, 
half  of  which  at  his  death  would  revert  to  the  prisoner's  wife. 
For  three  years  prior  to  his  death  John  had  been  attending  a 
school  kept  by  a  Mr.  W.  H.  Bedbrook.  On  December  3d,  1881, 
John  was,  with  the  exception  of  his  paralysis,  in  good  general 
health,  and  had  taken  his  meals  with  Mr.  Bedbrook  and  others. 

^  Short-hand  Report,  ut  supra,  and  Sess.  Pap. 

2  See  An.  Reg.,  1855,  p.  190.     The  technical  nature  of  the  evidence  in 
Smethurst's  case,  ut  supra,  would  render  it  inapplicable  in  illustration  of 
legal  principles,  even  if  doubt  had  not  been  thrown  upon  the  verdict  by 
the  grant  of  a  pardon. 
28 


434    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 


On  that  day  Lawson  called  on  John  ahout  7  p.  m.,  and  their 
interview  took  place  in  the  presence  of  Mr.  Bedbrook.  The 
last  named  gentleman  offered  Lawson  some  wine,  which  he  ac- 
cepted, and  Lawson  then  asked  for  some  sugar  to  destroy  the 
alcoholic  effects  of  the  wine,  which  he  said  was  rather  strong. 
On  a  basin  of  white  sugar  being  brought,  Lawson  put  some  of 
it  into  his  sherry.  Lawson  then  produced  a  Dundee  cake  and 
some  sweets,  of  which  all  three  partook.  In  a  few  minutes 
Lawson  produced  a  box  of  gelatine  capsules  from  his  pocket, 
and  said  :  "  Oh,  by  the  way,  Mr.  Bedbrook,  when  I  was  in 
America  I  thought  of  you  and  your  boys.  I  thought  what 
excellent  things  these  capsules  would  be  for  your  boys  to  take 
nauseous  medicines  in."  He  then  gave  a  capsule  to  Mr.  Bed- 
brook, and  filling  another  with  sugar  handed  it  to  John,  say- 
ing, "  Here,  Percy,  you  are  a  swell  pill-taker ;  take  this  and 
show  Mr.  Bedbrook  how  easily  it  may  be  swallowed."  John 
swallowed  the  capsule.  The  prisoner  in  three  or  four  minutes 
said  :  "  I  must  be  going,"  and  immediately  left  the  house.  In 
less  than  an  hour  John  complained  of  heartburn,  and  soon  after 
said,  "  I  feel  as  I  felt  after  my  brother-in-law  had  given  me  a 
quinine  pill  at  Shanklin."  He  was  carried  up  to  his  bedroom, 
and  about  9  p.  m.  was  found  vomiting  and  in  great  pain.  He 
complained  that  his  "  throat  appeared  to  be  closing,  and  the 
skin  of  his  face  felt  drawn  up."  At  11:30  the  same  evening 
he  died.  The  symptoms  indicated  the  presence  of  aconite. 
And  this  is  a  substance  exceedingly  difficult  of  detection.  But 
the  analyses  of  the  viscera  and  vomit  were  conducted  by  two 
experienced  chemists,  and  they  obtained  an  extract  which, 
when  placed  upon  the  tongue,  produced  a  numb,  tingling  sen- 
sation, and  a  small  quantity  of  which,  injected  under  the  skin 
of  a  mouse,  killed  it  in  a  few  minutes,  the  symptoms  being 
exactly  similar  to  those  produced  by  injecting  a  minute  quantity 
of  a  solution  of  aconitine.  These  are  considered  absolutely 
certain  tests. 

It  appeared  that  in  the  beginning  of  1881  Mr.  Bedbrook  had 
received  from  Lawson,  who  was  then  in  America,  a  box  contain- 
ing a  dozen  pills,  and  a  letter,  in  which  Bedbrook  was  requested 
to  give  the  pills  to  John,  as  Lawson  had  heard  of  cases  in 
America  similar  to  that  of  John  being  benefited  by  the  pills  in 
question.  The  deceased  took  one  of  the  pills,  and  the  next 
morning  complained  of  feeling  very  unwell,  and  said  he  should 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES,    435 

take  no  more  of  the  pills.  On  August  28tli  Lawson  bought  three 
grains  of  sulphate  of  atropine  and  one  grain  of  aconitine  from 
a  druggist  of  Ventnor,  and  on  the  next  day,  Percy  John,  who 
was  staying  at  that  time  in  Ventnor,  was  taken  ill  with  diar- 
rhoea and  prostration,  and  a  feeling  "  as  if  he  were  paralyzed 
all  over."  Lawson  was,  at  this  time,  living  with  his  father  in 
Ventnor,  and  was  in  the  habit  of  going  to  the  house  where 
John  was  living,  and,  as  was  shown,  had  actually  seen  him  on 
the  date  last  mentioned.  On  October  13th  the  prisoner  bought 
of  another  druggist  in  Ventnor  twelve  quinine  powders. 
John  at  the  time  of  his  death  was  taking  quinine  powders 
supplied  to  him  by  Lawson.  On  ISTovember  11th,  Lawson  had 
purchased  from  still  another  druggist  in  Ventnor  half  an  ounce  of 
a  mixed  solution  of  morphia  and  atropia,  and  on  the  16th  of  No- 
vember he  bought  a  similar  quantity  of  the  same  solution. 
On  this  last  mentioned  date  he  asked  also  for  five  grains  of 
digitaline,  which  was  not  given  to  him  because  the  sample  in 
stock  was  not  thought  to  be  good.  On  the  20th  of  November 
he  asked  for  one  grain  of  aconitine,  which  was  refused  him. 
From  another  druggist  he  purchased  two  grains  of  aconitine 
on  November  24th.  Among  the  effects  of  the  deceased  were 
found  quinine  powders  numbered  from  1  to  20.  Three  of 
these  powders  differed  from  the  rest,  having  an  admixture  of  a 
pale  fawn-colored  substance,  and  all  contained  aconitine.  One 
of  those  powders  contained  83-100  of  a  grain  of  aconitine  and 
96-100  of  a  grain  of  quinine.  One-fiftieth  of  a  grain  of  the 
aconitine  killed  a  mouse  in  six  minutes  and  a  half.  One  of  the 
pills  sent  by  Lawson  from  America  was  found  to  contain  nearly 
half  a  grain  of  aconitine.  Some  of  it  injected  into  the  back  of 
a  mouse  killed  the  animal  in  less  than  five  minutes,  and  the 
aconitism  produced  by  a  small  quantity  on  the  tongues  of  the 
experimenters  lasted  seven  hours.  The  defence  introduced  no 
witnesses,  and  the  counsel  for  the  prisoner  was  unable  to  do 
anything  to  lessen  the  weight  of  the  evidence,  and  the  accused 
was  convicted.^ 

One  of  the  earliest  cases  in  this  country  to  attract  wide-spread 
attention  to  this  subject  was  the  case  of  People  v.  Stephens,  al- 
ready referred  to.^     James  Stephens  was  tried  in  March,  1859, 

1  These  facts  are  gleaned  from  a  report  of  the  case  in  The  Lancet,  1883, 
vol.  1,  455. 

2  4  Park.  Cr.  R.  306. 


43G    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

for  the  murder  of  his  wife.  The  accused  and  the  deceased 
were  married  in  Ireland  about  1849.  Previous  to  the  marriage 
the  deceased  had  lived  with  her  brother,  who  had  living  with  him 
at  the  same  time  his  two  daughters,  the  one  about  sixteen  and 
the  other  about  eleven  years  of  age.  At  the  time  of  the  mar- 
riage the  deceased  was  thirty-six  years  of  age,  and  the  accused 
twenty-three.  The  newly  married  couple  soon  emigrated  to  Kew 
York,  and  shorth^  after  becoming  settled  in  that  city  invited  tlie 
eldest  of  the  wife's  nieces,  just  mentioned,  to  pay  them  a  visit. 
The  young  woman  reached  New  York  the  day  after  the  birth 
of  a  daughter  to  her  aunt,  and  immediately  entered  the  house- 
hold, where  she  remained  for  a  considerable  time  while  learn- 
ing the  trade  of  a  dressmaker.  She  at  length  procured  a  situa- 
tion in  a  private  family,  with  whom  she  remained  three  years. 
During  a  period  when  the  family  were  out  of  town  Stephens 
paid  her  a  visit  at  the  house,  bringing  with  him  a  bottle  of 
wine.  She  testified  that  on  this  occasion  the  prisoner  attempted 
to  violate  her  person  and  desisted  from  his  purpose  onl}^  on 
account  of  her  threatened  screams.  This  happened  about 
September,  1856.  A  bout  April,  1857,  the  younger  niece,  having 
been  advised  to  take  a  sea- voyage  for  her  health,  and  having 
received  an  invitation  from  Stephens  and  his  wife  to  visit  them 
for  a  year,  arrived  in  New  York  and  went  to  her  aunt's  house, 
where  she  was  joined  by  her  elder  sister.  From  that  time  on 
the  two  sisters  slept  together  in  the  house  of  the  prisoner.  In 
the  following  August,  according  to  the  testimony  of  the  two 
sisters,  Stephens  having  dressed  himself  to  attend  a  funeral, 
refused  to  allow  his  wife  to  accompany  him,  and  words  having 
passed,  struck  her  a  blow  in  the  eye.  One  of  the  sisters  testi- 
fied that  about  the  same  time  she  heard  the  accused  say 
that  he  wished  his  wife  dead,  or  out  of  the  Avay.  And  ac- 
cording to  the  testimony  of  both  sisters,  he  made  no  secret  at 
this  time  of  his  unkind  feelings  towards  his  wife,  and  treated 
her  with  much  roughness  and  disrespect,  both  in  word  and 
manner,  while  he  evinced,  as  some  of  his  expressions  seemed 
to  prove,  a  marked  jmrtiality  toward  one  of  the  nieces.  He 
dwelt  particularly  upon  the  disparity  in  the  ages  of  himself  and 
wife,  she  being  at  that  time  about  forty-five,  while  he  was  only 
thirty-two.  When  he  accompanied  her  it  was  a  source  of  much 
annoyance  to  him  that  people  might  say  she  looked  old  enough 
to  be  his  mother.     Other  witnesses,  however,  testified  that  the 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    437 

kindest  relations  ahvays  existed  between  the  defendant  and 
his  wife,  A  druggist  testified  that  about  this  time — which 
was  about  six  weeks  before  the  death  of  the  prisoner's  wife — 
he  sold  the  prisoner  half  an  ounce  of  white  arsenic,  and  that  in 
the  course  of  the  ensuing  week  he  sold  him  a  like  quantity. 
The  testimony  of  the  prisoner's  relatives,  touching  the  use  to 
which  this  poison  was  put,  has  been  heretofore  commented  on. 
About  the  6th  of  September  the  deceased  com})lained  of  a 
slight  pain  in  her  chest.  Her  husband,  contrary  to  her  wishes, 
sent  for  a  physician,  who,  after  two  attendances,  discontinued 
his  visits,  deeming  the  matter  of  little  consequence.  Ten  or 
eleven  days  thereafter,  however,  the  case  assumed  a  serious 
form  and  another  doctor  was  sent  for.  He  found  the  patient 
suffering  from  pain  in  the  pit  of  the  stomach,  vomiting,  and 
great  debility.  At  the  request  of  the  accused  he  discontinued 
his  attendances  after  he  had  made  a  few  visits,  and  in  about 
forty  hours  thereafter  the  patient  was  dead.  The  symptoms, 
claimed  to  be  those  of  arsenical  poisoning,  were  detailed  to  the 
jury,  as  likewise  the  results  of  the  jjost-7nor tern  examination,  to 
which  reference  has  heretofore  been  made.  The  body  was  not 
exhumed  until  a  year  after  death,  and  was  found  in  a  remark- 
able state  of  preservation,  and  this  latter  fact  was  attributed 
to  the  action  of  the  arsenic. 

The  prosecution  claimed  that  the  prisoner  having  tired  of 
his  wife,  whose  beauty  had  deteriorated,  had  wished  to  form  an 
alliance  with  his  oldest  niece,  and  that  he  had  resorted  to  poison 
to  remove  the  great  hindrance  to  the  accomplishment  of  his 
cherished  purpose.  The  former  unsuccessful  attempt  upon  the 
person  of  this  niece  will  be  remembered.  About  a  month  after 
his  wife's  death  the  prisoner  made  a  proposal  of  marriage  to 
the  niece,  which  being  refused,  he  followed  by  another  unsuc- 
cessful attempt  upon  her  person.  Shortly  after  this  a  suitor 
for  the  hand  of  the  niece  received  an  anonymous  letter,  urging 
him  to  discontinue  his  attentions  to  the  girl,  and  giving  as 
a  reason  for  the  advice  the  immoral  character  of  the  young 
woman  and  her  criminal  intimacy  with  Stephens.  This  letter, 
it  was  claimed,  was  written  by  no  other  than  Stephens  himself. 
One  of  the  nieces  testified  that  it  was  in  the  handwriting  of 
the  prisoner  ;  and  another  Avitness  swore  that  about  that  time 
the  prisoner  came  to  him  with  a  letter  inclosed  in  an  envelope, 
requesting  him  to  Avrite  the  address ;  that  he  did  so,  and  that 


438    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

the  envelope  produced  by  the  person  who  received  the  letter 
was  the  identical  paper.  The  prisoner  was  convicted,  but  on 
account  of  his  hitherto  apparently  blameless  life  many  persons 
were  inclined  to  believe  the  verdict  unjust,  and  the  Governor 
was  petitioned  for  a  pardon.  But  all  efforts  to  invoke  the 
executive  clemency  ceased  on  the  discovery  of  a  plan  by  the 
prisoner  to  kill  his  keeper  and  effect  his  escape;  and  the 
sentence  of  the  law  Avas  fulfilled. 

A  very  important  case  on  account  of  its  consideration  of 
some  of  the  points  which  have  been  discussed  was  the  case  of 
People  V.  Millard)-  Mathew  Millard  was  an  enterprising  man, 
engaged  quite  extensively  in  several  lines  of  business,  in  a  small 
town  in  Michigan.  Among  other  things  he  carried  on  an  un- 
dertaking establishment,  which,  however,  he  sold  a  short  time 
before  the  fatal  illness  of  his  wife.  On  tlie  23d  of  April, 
1882,  Mrs.  Millard  was  so  seriously  ill  as  to  consult  a 
physician.  The  sjmiptoms  manifested  were  similar  to  those  of 
arsenical  poisoning.  On  May  9th,  Mrs.  Millard  died  ;  and 
on  the  22d  of  the  following  August,  portions  of  the  body 
were  exhumed  and  analyzed.  A  considerable  quantity  of 
arsenic  Avas  found  in  the  stomach  and  portions  of  the  rectum, 
and  also  in  the  liver  and  kidneys.  On  the  20th  of  the 
following  September  the  body  was  again  taken  up,  and  the 
brain  and  a  portion  of  the  muscles  from  the  calf  of  the  leg  re- 
moved, and  sent  to  the  same  chemist  for  analysis.  But  in  these 
parts  no  trace  of  arsenic  was  found.  The  prosecution  claimed 
that  the  defendant  had  administered  arsenic  to  his  wife,  on 
different  occasions,  between  the  25th  of  April  and  the  9th 
of  May,  in  sufficient  quantities  to  produce  death.  At  the 
trial  the  physician  who  had  attended  Mrs.  Millard  testified  that 
he  had,  as  early  as  the  25th  of  April,  entertained  suspicions 
that  his  patient  was  suffering  from  arsenical  poisoning. 
He,  however,  took  no  steps  to  ascertain  the  correctness  of  his 
suspicions,  and  administered  no  antidote.  Neither  did  he 
attempt  to  ascertain  Avhether  or  not  there  was  any  arsenic  in 
the  matter  vomited  by  the  patient.  And  at  the  time  when 
others  suspected  criminal  poisoning,  he  declared  2^  lyost-mortem 
examination  unnecessary.^ 

1  53  Mich.  63. 

2  The  singular  course  pursued  by  the  physician  has  been  the  subject  of 
severe  animadversion. 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    439 

The  defence  accounted  for  the  presence  of  the  arsenic  in  the 
organs  analyzed  by  an  attempt  to  embahn  the  body  undertaken 
by  the  defendant  and  his  brother.  They  swore  that  a  few 
hours  before  death  they  suspended  one  teaspoonful  of  arsenic 
in  a  teaspoonful  of  water,  and  threw  a  syringe ful  into  the 
mouth,  and  injected  the  remainder  into  the  rectum.  They  did 
this,  they  said,  because  it  was  intended  to  send  to  some  dis- 
tance for  a  casket,  and  the  burial  would  be  delayed  for  several 
days.  The  defendant,  as  appeared,  had  asked  an  undertaker 
to  embalm  the  body,  and  when  the  latter  had  replied  that  he 
did  not  know  hoAv,  had  asked  him  to  get  arsenic — the  under- 
taker testified  that  he  had  been  requested  to  get  strychnine — 
and  he  would  embalm  the  body  himself.  Around  this  point 
the  great  interest  of  the  case  centred.  And  the  accused  was 
finally  acquitted  because  of  the  doubt  in  the  minds  of  the  jury 
as  to  whether  or  not  the  arsenic  found  in  the  body  was  to  be 
accounted  for  by  the  embalming  process.^ 

The  elaborate  opinion  of  Mr.  Justice  Gray  in  the  Harris 
case  has  been  already  referred  to  on  several  occasions  in  this 
chapter.  From  the  same  source  I  have  taken  the  statement  of 
the  facts  of  that  cause  celehre  given  below.  Carlyle  W.  Harris 
was  charged  with  the  crime  of  mm-der  in  the  first  degree,  com- 
mitted upon  Helen  Neil  Potts,  by  administering  to  her  mor- 
phine in  a  large  enough  quantity  to  cause  her  death.  The 
defendant  had  formed  the  acquaintance  of  the  deceased  in  the 
summer  of  1889,  at  Ocean  Grove,  N.  J.,  where  her  family  were 
residing.  When  they  moved  to  the  city  of  New  York  for  the 
winter,  the  acquaintance  continued,  and  on  February  8th, 
1890,  obtaining  permission  from  her  mother  to  take  her  to  see 
the  Stock  Exchange,  he  went  with  her  before  an  alderman, 
and  they  were  married  under  the  assumed  names  of  Charles 
Harris  and  Helen  Neilson.  He  was  at  the  time  pursuing  his 
studies  as  a  medical  student  in  that  city,  and  he  continued  to 
visit  the  deceased  until  her  family  returned,  in  May  following, 
to  Ocean  Grove.  He  followed  them  there  soon  afterwards. 
Mrs.  Potts,  the  mother  of  the  deceased,  testified  that  there  was 
a  falling-off  in  his   attentions  to  the  deceased,  and  a  marked 

1  See  on  this  point,  supra.  For  the  full  statement  of  the  facts  of  this  case, 
!3ee  the  paper  read  before  the  First  American  International  Medico-Legal 
Congress,  reported  in  the  Bulletin  of  the  Congress  by  Dr.  Vaughan,  one  of 
the  expert  witnesses  for  the  defence. 


44:0    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

change  appeared  in  his  manner  towards  her,  which  seemed  to 
worry  her.  A  young  friend  of  the  deceased,  Miss  Schofield, 
coming  to  visit  her  in  June,  the  defendant  informed  her,  upon 
the  occasion  of  a  walk,  because  he  said  the  deceased  had  in- 
sisted upon  it,  that  they  were  secretly  married.  Upon  Miss 
Schofield's  saying  she  should  beg  the  deceased  to  tell  her 
mother,  the  defendant  became  very  angry,  and  said  she  should 
not  do  so,  that  his  prospects  would  be  utterly  ruined,  and  that 
he  would  rather  kill  the  deceased  and  himself  than  have  the 
marriage  made  public;  and  he  expressed  the  wish  that  the 
deceased  were  dead  and  he  were  out  of  it.  Later  in  the  day 
he  went  out  with  the  deceased,  was  absent  for  several  hours, 
and  upon  their  return  to  the  house  she  appeared  pale  and  ill, 
and  went  directly  to  her  room.  Shortly  after  this,  in  the  latter 
part  of  June,  she  went  to  Scranton,  Pa.,  and  visited  an  uncle. 
Dr.  Treverton.  While  there  Dr.  Treverton  discovered  that 
she  was  with  child,  and  treated  her  accordingly ;  but  subse- 
quentl}'-  Avas  obliged  to  remove  from  her  a  foetus  of  five  months' 
formation,  and  which  had  been  dead  for  some  time.  After  the 
operation  slie  recovered  her  health  completely,  and  returned  in 
the  first  part  of  September  to  Ocean  Grove.  While  she  was  at 
Dr.  Treverton's,  and  about  the  end  of  July,  the  defendant  came 
upon  a  telegram  from  the  deceased,  and  a  letter  from  Dr.  Trever- 
ton, and  remained  a  few  days.  The  operation  for  the  removal  of 
the  foetus  was  made  while  he  was  there.  Dr.  Treverton  testified 
to  the  conversations  with  the  defendant  upon  the  occasion  of 
his  visit,  in  which  the  defendant  said  he  had  performed  two 
operations  upon  the  deceased,  and  had  thought  everything  was 
removed.  He  boasted  of  his  previous  intrigues  with  other 
women,  and  of  his  success  in  not  having  had  any  trouble 
before.  His  remarks  are  unnecessary  to  be  wholly  repeated, 
from  their  revolting  depravity ;  but,  in  the  course  of  them,  he 
said  he  had  been  "  secretly  married  to  at  least  two  young 
ladies,"  and  by  one  had  a  fine  child.  During  the  same  visit  he 
had  a  conversation  with  the  witness  Oliver,  then  visiting  the 
Trevertons,  in  which  he  spoke  boastingly  of  his  experience 
with  women,  and  of  the  facility  with  which  he  could  gain  sen- 
sual control  of  them.  He  said  that  in  two  instances  he  had  to 
overcome  their  scruples  by  a  secret  marriage  ceremony,  but 
was  ready  to  stand  by  them.  Upon  the  witness  asking  him 
how  he  could  stand  by  both,  he  answered,  in  substance,  that 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    441 

there  would  be  no  trouble,  as  the  first  one  was  glad  to  be  rid 
of  hjm ;  and  he  went  on  to  tell  the  circumstances  of  their  re- 
lations, and,  as  the  final  result,  that,  after  a  child  was  born, 
the  woman  expressed  her  disgust  with  him,  and  wanted  to  see 
no  more  of  him.  To  neither  Trevelin  nor  Oliver  does  it  appear 
that  he  admitted  a  contract  of  marriage  with  the  deceased. 
While  the  deceased  was  at  Treverton's  her  mother  joined  her, 
and  then  learned  of  the  secret  marriage,  and  what  had 
happened. 

In  the  first  week  of  September  the  defendant  was  at  an 
hotel  in  Canandaigua,  N.  Y.,  under  an  assumed  name,  with  a 
young  woman  named  Drew.  His  conduct  towards  her  was 
demonstrative  in  its  affection,  and  her  friends  there,  discover- 
ing their  illicit  relations,  compelled  him  to  leave.  During  his 
stay,  Avitness  Latham  overheard  a  conversation  between  him 
and  the  Drew  woman,  in  which  he  advised  her  to  marry  some 
old  gentleman  with  lots  of  mone}^,  and,  upon  her  asking  what 
if  she  did,  he  is  said  to  have  replied,  "  Oh,  we  can  put  him  out  of 
the  way ; "  and  upon  her  inquiring  how,  he  further  said  :  "  You 
find  the  old  gentleman,  and  we  will  give  him  a  pill.  I  can  fix 
that."  After  the  return  of  the  deceased  and  her  mother  from 
Scranton  they  met  the  defendant  in  New  York  City,  and 
lunched  together.  They  talked  about  the  secret  marriage,  of 
which  the  mother  had  been  informed  at  Scranton.  He  offered 
to  satisfy  Mrs.  Potts  of  its  legality,  and  took  her  to  the  office 
of  his  lawyer,  Mr.  Davison.  The  defendant  told  her  he  had 
burned  the  original  marriage  certificate,  but  sent  for  and  ob- 
tained a  copy  from  the  records,  and,  upon  Mr.  Davison's  sug- 
gestion, attached  to  it  an  affidavit,  made  by  him,  stating  his 
marriage  with  the  deceased  under  assumed  names  before  an 
alderman.  During  a  conversation  at  the  office  he  asked  if  Mr. 
Potts  knew  of  the  marriage.  She  said  it  was  no  time  to  tell 
him  then,  and  asked  him  if  he  had  told  his  mother.  He  said, 
"  No,  he  would  not  have  his  family  know  of  it  for  half  a  mil- 
lion of  dollars.''  He  suggested  to  Mrs.  Potts  that  if  she  was 
so  unhappy  about  the  marriage,  it  could  easily  be  broken,  and 
no  one  would  be  the  wiser.  Upon  her  expressing  herself  in 
indignant  refusal  of  the  suggestion,  and  insisting  upon  a 
"  ministerial "  marriage,  he  objected  to  it  at  the  time,  alleging 
as  an  excuse  that  it  would  connect  her  name  with  certain  club 
scandals  in   which   he    was  involved   at  Asbury  Park.      He 


44:2    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

promised,  however,  to  have  the  ministerial  marriage  at  any 
time  in  the  future  that  Mrs.  Potts  should  say.  He  expressed 
his  gratification  at  her  not  pushing  the  matter  of  the  marriage 
at  that  time  ;  that,  if  she  had,  he  would  have  been  obliged  "  to 
leave  everything,  and  go  west,""  Upon  that  occasion  he  sug- 
gested putting  the  deceased  at  Miss  Comstock's  school,  to  fit 
her,  as  he  said,  for  the  society  in  which  they  were  to  move, 
to  which  suggestion  Mrs.  Potts  acceded.  At  his  request  she 
promised  to  write  to  Dr.  Treverton,  and  express  her  satisfac- 
tion with  the  marriage,  and  to  prevent  the  doctor  from  making 
any  trouble  for  him  at  the  medical  college,  as  he  had  all  he 
could  do,  he  said,  to  meet  the  charge  of  keeping  a  disorderly 
house.  Upon  leaving  the  lawyer's  office,  they  joined  the  de- 
ceased at  the  ferry  ;  he  crossing  with  them.  The  deceased 
learned  of  her  mother's  being  satisfied  about  the  marriage,  and 
she  seemed  to  be  made  very  happy  in  consequence.  In  Decem- 
ber the  deceased  was  placed  at  school,  and,  as  a  friend  of  the 
family,  the  defendant  received  permission  to  visit  her.  During 
her  visit  to  her  home  in  the  holidays  he  wrote  to  deceased, 
asking  that  no  announcement  should  be  made  of  their  engage- 
ment at  this  time.  In  reply  to  a  letter  from  Mrs.  Potts,  in  the 
first  week  of  January,  he  wrote,  suggesting  that  there  should 
be  no  further  question  of  marriage  for  two  years  longer,  and 
that  her  daughter  should  take  a  collegiate  course.  About 
January  the  18th  or  19th  Mrs.  Potts  wrote  to  defendant,  ex- 
pressing herself  strongly  upon  the  hardshi]3  of  her  daughter's 
position,  with  a  delay  of  three  years  as  an  unacknowledged 
wife,  and  for  no  apparent  reason  ;  that  her  daughter's  illness 
at  Scranton  had  been  commented  upon ;  that  if  he  should  die, 
it  would  be  humiliating  to  publish  a  marriage  under  the  cir- 
cumstances of  its  contracting ;  that  her  husband  might  meet 
Dr.  Treverton,  and  be  told  of  the  illness  at  Scranton,  and  of 
the  doctor's  doubts  about  a  marriage.  She  concluded  by  ask- 
ing him  to  keep  his  word,  and  to  do  as  he  had  promised  her, 
and  demanded  of  him  to  go,  upon  the  anniversary  of  the  first 
marriage,  February  8th,  and  be  married  before  a  minister  of 
the  gospel,  and  give  her  the  certificate  to  hold,  which  she 
would  make  public  at  such  time  as  she  chose.  To  this  he  re- 
plied that  he  would  do  all  she  asked  of  him,  if  no  other  means 
of  satisfying  her  scruples  could  be  found.  On  Tuesday, 
January  20th, — a  day  after  he  received  Mrs.  Potts'  letter, — 


CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES.    443 

the  defendant  vrent  to  the  shop  of  Mclntyre  &  Sons,  druggists, 
in  New  York  City,  and  at  first  ordered  some  capsules  of  sandal- 
wood to  be  put  up.  Upon  the  clerk's  mentioning  that  it  would 
take  some  time,  he  said  he  could  not  wait.  He  then  handed 
the  clerk  a  prescription,  asking  if  it  would  take  long  to  prepare, 
and,  upon  learning  that  it  would  take  a  few  minutes,  waited 
for  it.  It  called  for  twenty-five  grains  of  sulphate  of  qui- 
nine and  one  grain  of  sulphate  of  morphine,  mixed  in  six 
capsules,  with  a  direction  to  take  one  before  retiring.  The 
prescription  was  put  up  by  the  clerk  with  minute  care,  being 
aided  by  another  clerk,  who  checked  the  amount  and  weight 
of  the  morphine,  according  to  a  custom  adopted  where  poisons 
are  put  up.  The  box,  properly  labelled,  containing  six  capsules, 
each  capsule  containing  one-sixth  of  a  grain  of  morphine  and 
four  grains  and  a  fraction  of  quinine,  was  taken  by  him.  He 
never  called  for  the  sandal-wood  capsules.  The  following  day 
— being  Wednesday,  January  21st— he  was  at  the  school  recep- 
tion, and  saw  the  deceased.  The  testimony  in  the  case  shows 
that  the  defendant  stated  to  both  coroner  and  deputy  coroner, 
when  shown  and  asked  about  the  pill-box  taken  from  the  room 
of  the  deceased,  that  it  was  the  one  that  he  had  given  to  her 
on  Wednesday,  January  21st,  and  he  described  the  prescrip- 
tion as  above,  stating  that  he  had  given  it  to  her  for  headaches, 
and  that  he  had  given  her  only  four  of  the  capsules.  It  was 
also  shown  by  the  testimony  of  several  witnesses  from  the 
medical  college  that  in  the  latter  part  of  December  and  the 
first  part  of  January  lectures  were  given  upon  opium  and  its 
effects  when  used  feloniously.  The  sulphate  of  morphine,  con- 
tained in  wide-mouthed  bottles,  had  been  passed  around  among 
the  students,  of  whom  the  defendant  was  one,  and  they  Avere 
allowed  to  take  it  out,  and  to  handle  it  when  they  chose. 
After  meeting  the  deceased  at  the  reception  on  Wednesday, 
January  21st,  the  defendant  left  for  Old  Point  Comfort,  Ya., 
and  did  not  return  until  a  week  later.  While  there,  it  appears 
that  she  wrote  to  him  that  the  medicine  had  not  relieved  her 
headache,  and  rather  made  her  worse :  to  which  he  replied, 
advising  her  to  continue  taking  it. 

On  Saturday,  January  31st,  deceased,  her  mother,  and  the 
defendant  met  at  the  school,  and  walked  together.  The  deceased 
seemed  perfectly  well,  and  very  bright  and  happy.  Mother 
and  daughter  returned  to  the  school,  and,  when  in  the   bed- 


444    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

room  of  the  deceased,  she  showed  her  mother  the  pill-box,  with 
one  capsule  left  in  it,  and  remarked  she  had  been  taking  some 
capsules  that  Carl  (the  defendant)  had  brought  her.  She  com- 
plained of  their  making  her  feel  ill,  and  of  her  dislike  to  take 
them.  She  said  she  was  tempted  to  toss  it  out  of  the  window, 
and  then  to  tell  Miss  Day,  the  principal,  she  had  taken  it.  Her 
mother  advised  her  to  take  it,  remarking  that  quinine  Tvas  apt 
to  make  one  feel  WTetched,  and  that  she  might  have  been  mala- 
rious. Her  mother  left,  and  then  occurred  the  scenes  of  illness 
and  death  in  that  night  which  I  have  before  described.  The 
defendant  was  sent  for  towards  daylight  by  Dr.  Fowler,  who, 
stating  that  he  believed  it  to  be  a  most  profound  case  of  opium 
poisoning,  wished  to  learn  what  had  been  contained  in  the  pill- 
box in  her  room,  and  which  not  only  was  the  only  evidence  of 
anything  like  medicine  about  the  room,  but  which,  according 
to  her  room-mates,  was  the  only  medicine  in  the  room  that  day. 
The  defendant  told  him  what  had  been  its  contents,  and  of  his 
having  prescribed  the  capsules  for  headache,  insomnia,  and  the 
like.  Dr.  Fowler  said  one-sixth  of  a  grain  could  not  produce 
the  condition,  and  advised  him  to  go  at  once  to  the  druggist, 
and  to  ascertain  if  the  proportions  of  the  drugs  had  been  re- 
versed. He  pretended  to  go  immediately,  and,  when  he  shortly 
after  returned,  stated  to  Dr.  Fowler  that  the  medicine  had  been 
prepared  exactly  according  to  his  prescription.  The  evidence 
shows  that  he  did  not  go  to  the  druggist's  that  morning,  as 
supposed  by  Dr.  Fowler,  nor  until  11  o'clock,  and  after  the 
death,  when  Dr.  Kerr  told  him  to  go  and  try  to  get  the  original 
prescription  if  he  could.  During  the  time  he  was  in  the  room 
where  the  deceased  lay  he  surprised  the  physician  by  his  com- 
posure and  general  lack  of  interest  or  of  affection,  except 
when,  upon  her  death,  he  exclaimed,  "My  God,  what  will  be- 
come of  me !  "  He  spoke  to  the  physicians  of  being  "  somewhat 
interested  in  the  girl,"  and  mentioned  a  possible  future  engage- 
ment to  her.  He  asked  them  repeatedly  if  they  thought  he 
could  be  held  responsible  for  the  death.  To  them  and  to  the 
coroner  he  said  he  was  merely  a  friend  of  the  deceased,  and 
pretended  hesitation  as  to  her  correct  given  names.  In  the 
evening  of  the  Sunday  he  met  Mrs.  Potts  at  the  ferry-house, 
and  stated  to  her  that  her  daughter  had  died  of  morphine  poi- 
soning, and  represented  it  "  as  the  druggist's  awful  mistake." 
Mrs.  Potts  says,  when  she  told  him,  as  the  deceased  was  the 


CASES  IN  ILLUSTEATION  OF  THE  FOREGOING  RULES.    445 

mother  of  his  child,  she  must  be  buried  under  his  name,  that 
his  terror  was  frightful,  and  that  he  said  that  it  could  not  be  ; 
that  he  would  do  anything,  but  that  the  knowledge  of  the  mar- 
riage coming  at  this  time  would  destroy  him  ;  that  he  would 
"  answer  just  the  same  if  it  was  Queen  Victoria's  daughter, 
'  She  cannot  be  buried  under  my  name ; '  "  and  he  urged  as  a 
pretext  consideration  for  the  reputation  of  the  school.  The 
coroner  met  them  at  the  school  in  the  evening.  The  defendant 
said  he  had  one  of  the  capsules  prescribed  for  the  deceased,  and 
gave  it  to  the  coroner,  telling  him  to  analyze  it,  and  it  would 
be  found  all  right.  Subsequent  chemical  anah'sis  of  it  proved 
the  correctness  in  preparing  the  prescription.  The  mother,  in 
order,  as  she  says,  to  get  a  permit  to  take  the  body,  as  soon  as 
possible,  out  of  the  house,  and  to  New  Jersey,  represented 
falsely,  as  she  also  admitted,  that  her  daughter  had  heart 
trouble.  She  left  the  next  day  with  the  body.  Some  days  later 
the  defendant  stated  to  Dr.  Hayden,  in  conversation  about  the 
occurrence,  and  when  rebuked  for  writing  prescriptions,  that 
"  these  capsules  would  not  hurt  any  one,  and  no  jur}^  would 
convict  me,  because  I  have  two  capsules  which  can  be  analyzed, 
and  be  found  to  contain  the  correct  dose."  Of  the  druggist's 
clerk,  witness  Powers,  at  an  interview  at  the  store  on  February 
7th,  when  obtaining  some  medicine,  he  asked  if  he  had  seen  the 
account  in  the  papers,  and  whether  he  believed  it,  and  upon  the 
witness  expressing  his  belief  that  the  girl  died  of  heart  disease, 
he  said,  "  So  do  I."  They  talked  about  the  putting  up  of  the  pre- 
scription, and  the  defendant  said  there  was  no  doubt  it  was  all 
right.  To  Dr.  Peabody,  whom  he  went  to  see  with  an  intro- 
ductory letter  from  his  medical  preceptor,  a  day  or  two  after 
the  death,  and  to  whom  he  stated  the  circumstances  attending 
it,  he  described  the  prescription  and  for  what  given,  and  alleged 
as  an  excuse  for  keeping  out  two  of  the  capsules,  that  it  was 
injudicious  to  put  as  much  as  a  grain  of  morphine  in  a  girls' 
school.  Later  in  February,  in  a  conversation  with  Dr.  White, 
he  said  he  did  not  know  Avhether  the  druggist  had  made  a  mis- 
take, or  whether  there  was  a  brain  tumor,  which  would  account 
for  the  fact  that  the  morphine  in  the  capsule  had  been  the 
cause  of  death.  A  few  days  before  the  coroner's  inquest,  which 
was  held  on  February  2Tth,  the  defendant  met  Mrs.  Potts,  and 
said  that  the  coroner's  inquest  would  exonerate  him,  and  that  he 
was  innocent ;  and  upon  her  remarking,  "  If  innocent,  how  did 


44G    CASES  IN  ILLUSTRATION  OF  THE  FOREGOING  RULES. 

she  die  ? "  he  repield  that  "  it  was  the  druggist's  mistake."  She 
asked  how  that  could  be,  when  he  said  that  the  capsules,  upon 
being  analyzed,  would  prove  it  to  be  all  right,  and  said  the  state- 
ments conflicted.  He  merely  replied  that  he  would  have  the 
capsules  analyzed  himself.  He  ascertained  from  her  that  neither 
Mr.  Potts  nor  Dr.  Treverton  knew  of  her  fears.  He  then  en- 
deavored to  obtain  from  her  the  affidavit  of  the  marriage,  say- 
ing that  he  must  have  it,  that  it  was  more  valuable  than  he 
dare  tell  her.  She  said  he  could  not  get  it,  "  it  is  not  here." 
The  jury  returned  a  verdict  of  "  guilty,"  and,  as  was  said  by  the 
learned  judge,  "  a  careful  reading  of  the  evidence,  and  a  con- 
scientious consideration  of  the  facts  disclosed,  must  inevitably 
lead  to  the  formation  of  an  opinion  that  the  verdict  of  the  jury 
was  not  only  justified,  but  that  no  other  conclusion  could  have 
been  reached  by  the  fairest  mind." 


DIVISION  IV. 

APPLICATION    OF  THE  GENERAL   PRINCIPLE    TO   PROOF 
OF  THE  CORPUS  DELICTI  IN  CASES  OF  INFANTICIDE. 


CHAPTER  I. 

PREGNANCY  MUST  BE  ESTABLISHED. 

Of  the  various  forms  of  criminal  homicide,  that  of  infanti- 
cide, by  which  is  popularly  understood  the  murder  of  a 
recently  born  infant  for  the  purpose  of  concealing  its  biilh, 
perhaps  presents  the  greatest  difficulties  in  the  establishment 
of  the  corpus  delicti. 

In  addition  to  the  sources  of  difficulty  and  fallacy  which  are 
incidental  to  charges  of  homicide  in  general,  there  are  many 
circumstances  of  embarrassment  peculiar  to  cases  of  this 
nature,  amongst  which  may  be  mentioned  the  occasional 
uncertainty  and  inconclusiveness  of  the  symptoms  of  preg- 
nancy, the  fundamental  fact  to  be  proved,^  which  may 
resemble  and  be  mistaken  for  appearances  caused  by  obstruc- 
tions or  spurious  gravidity .^  In  a  remarkable  case  of  imputed 
murder  of  an  adult  female,  the  suspicion  of  pregnancy  arose 
principally  from  the  bulk  of  the  deceased  while  living,  coupled 
with  circumstances  of  conduct  which  denoted  the  existence  of 
an  improper  familiarity  between  the  parties,  and  from  the  dis- 
covery upon  2>ost-mortem  examination  of  what  was  believed  by 
the  ^^^tnesses  for  the  prosecution  to  be  the  placental  marks. 
Four  medical  witnesses  expressed  the  strongest  belief  that  the 

1  Hume's  Comm.  tit  supra,  464. 

2  Rex  V.  Bate,  Warwick  Summer  Assizes,  1809 ;  Rex  i\  Ferguson,  Bur- 
nett's C.  L.  %it  supra,  574.  Famous  historical  instances  of  this  are  the  cases 
of  Mary  I.  and  Mary  II.  of  England. 

447 


448 


PREGNANCY  MUST  BE  ESTABLISHED. 


deceased  bad  been  recently  delivered  of  a  cbild  nearly  come 
to  maturity ;  wbile  on  tbe  otber  band  it  was  proved  tbat  sbe 
bad  been  subject  to  obstructions ;  and  it  Avas  deposed  tbat  tbe 
appearances  of  tbe  uterus  migbt  be  accounted  for  by  bydatids,  a 
species  of  dropsy  in  tbat  part  of  tbe  body,  and  tbat  wbat  was 
tbougbt  to  be  tbe  placental  mark  migbt  be  tbe  jpediculi  by 
wbicb  tbey  were  attacbed  to  tbe  internal  surface  of  tbe  womb.^ 
Tbe  learned  judge  said  to  tbe  jury,  tbat  it  was  a  very  unfor- 
tunate tbing,  tbat  upon  every  particular  point  tbey  bad  to  rest 
upon  conjecture ;  tbat  it  was  a  conjecture  to  a  certain  extent 
tbat  tbe  deceased  was  witb  cbild,  tbat  it  was  conjecture  to  a 
certain  degree  tbat  any  means  were  used  to  procure  abortion  ; 
and,  if  tbey  were  used,  tbat  it  was  conjecture  tbat  tbe  prisoner 
was  privy  to  tbe  administration  of  tbem. 

1  Rex  V.  Angus,  Lancaster  Autumn  Assizes,  1808,  coram  Mr.   Justice 
Chambre,  Short-hand  Report.   And  see  Burnett's  C.  L.  of  Scotland,  575. 


CHAPTER  II. 

THE  BIRTH  OF  A  LIVING   CHILD  MUST  BE   SHOWN. 

It  must  be  clearly  shown  that  a  child  has  been  born  alive, 
and  acquired  an  independent  circulation  and  existence ;  ^  it  is 
not  enough  that  it  has  breathed  in  the  course  of  its  birth ;  * 
but  if  a  child  has  been  wholly  born,  and  is  alive,  and  has 
acquired  an  independent  circulation,  it  is  not  material  that  it 
is  still  connected  with  its  mother  by  the  umbilical  cord,^  nor 
is  it  essential  that  it  should  have  breathed  at  the  time  it  was 
killed,  as  many  children  are  born  alive  and  yet  do  not  breathe 
for  some  time  after  birth.*  But  the  language  used  by  the 
courts  in  one  or  two  late  cases  indicates,  perhaps,  a  leaning 
towards  somewhat  different  views.  In  a  recent  English  case 
Brett,  J.,  said :  "  The  question  to  be  answered  is  this :  Did  the 
child  exist  as  a  live  child,  breathing,  and  living  by  reason  of 
breathing,  through  its  own  lungs  alone,  without  deriving  any 
of  its  living  or  power  of  living  by,  or  through,  any  connection 
with  its  mother  ? "  ^ 

"  A  child  which  has  been  born  but  has  not  breathed,"  said 
the  court  in  an  important  case  in  lowa,^  "  and  is  connected 
with  the  mother  by  the  umbilical  cord,  may  have  the  power 
to  establish  a  new  life  upon  its  own  resources  antecedent  to  its 
exercise.  While,  after  a  child  is  born,  it  can  no  longer  be 
called  a  foetus  in  the  ordinary  meaning  of  that  word,  yet  it 
must  be  evident  that  when  a  child  is  born  alive,  but  has  not 

1  Harris  v.  State,  28  Tex.  Crim.  App.  308  ;  19  Am.  St.  R.  837. 

«  Rex  V.  Poolton,  5  C.  &  P.  399  ;  Rex  v.  Enoch,  Id.  539  ;  Rex  v.  Crutchley, 
7  Id.  814 ;  Rex  v.  Sellis,  Id.  856. 

3  Reg.  V.  Reeves,  9  Id.  25  ;  Reg.  v.  Wright,  Id.  754  ;  Reg.  v.  Trilloe,  1  C. 
&  M.  650. 

*  Rex  V.  Brain,  6  C.  &  P.  350. 

6  Reg.  V.  Handley,  13  Cox  C.  C.  79.  See  also  Johnson  v.  State  (Tex. 
Crim.  App.),  24  S.  W.  285. 

6  Winthrop  v.  State.  43  la.  519. 

29  449 


450      THE  BIRTH  OF  A  LIVING  CHILD  MUST  BE  SHOWN. 

yet  respired,  its  condition  is  precisely  lilie  tliat  of  they^^w*  in 
utero.  It  lives  merely  because  the  fo&tal  circulation  is  still 
going  on.  In  this  case  none  of  the  organs  undergo  any 
change."  ^ 

Whether  a  child  has  been  born  alive  or  not  is  a  question 
for  the  jury  to  consider,  and  is  frequently  a  question  of  consid- 
erable difficulty.  The  act  of  breathing  is  held  to  constitute 
incontrovertible  evidence  of  the  individual  existence  of  the  in- 
fant, and  therefore  the  accomplishment  of  its  independent  cir- 
culation.2  Now,  though  independent  circulation  in  its  proper 
sense  follows  breathing,  yet  the  condition  of  the  lungs  can 
never  determine  whether  the  child  breathed  before  or  after 
full  and  complete  birth.  By  the  hydrostatic  test  it  may  be 
determined  only  whether  the  child  has  breathed.  This  test, 
from  the  indications  of  which,  in  fonner  times,  so  many 
women  sulTered  the  extreme  penalty  of  the  law,  though  the 
best  test  known  to  medical  science,  is  not  infallible.  The 
manner  has  been  pointed  out  in  which  it  can  be  determined 
whether  the  child  breathed  before  or  after  emerging  from  the 
mother.  Should  an  effort  to  respire  take  place  while  the  head 
is  still  within  the  pelvis,  mucus  and  not  air  would  be  drawn 
into  the  air-cells;  and  upon  a  fost-morUm  examination  the 
lungs  would  disclose  the  exact  nature  of  such  a  case.  If,  how- 
ever, a  skilled  accoucheur,  in  a  case  of  difficult  and  continued 
labor,  were  to  insert  his  hand  for  the  purpose  of  rendering 
assistance  to  the  child  thus  endangered  by  protracted  labor, 
and  the  child  were  to  respire  by  means  of  the  aid  thus  ren- 
dered, the  ■post-rnortein  examination  would  not  yield  any  evi- 
dence as  to  whether  the  respiration  took  place  before  or  after 
birth.  But  as  the  mother  can  never  perform  this  operation 
upon  herself,  this  obstacle  in  the  way  of  the  test  above  stated 
will  not  present  itself  in  a  case  of  infanticide.  So  that  in  a 
case  of  this  kind,  if  the  lungs  show  atmospheric  air  and  not 
mucus,  it  is  to  be  concluded  that  the  breathing  occurred  either 
after  complete  birth  or  after  the  head  was  expelled.  The  res- 
piration test  can  never  determine  whether  the  child  breathed 
after  the  expulsion  of  the  head  or  after  full  and  complete 

1  Beak,  Med.  Jur.  vol.  1,  p.  498. 

2  See  Marshall's  Outlines  of  Physiology  (Ed.  1868),  980  ;  Flint's  Physiology 
of  Man  (1874),  vol.  5,  442  ;  Gray's  Anatomy  (5th  Ed.),  768  ;  Playfair's  System 
of  Midwifery  (2d  Ed.),  by  Harris,  120. 


THE  BIRTH  OF  A  LIVING  CHILD  MUST  BE  SHOWN.       451 

birtb.  Nothwithstanding  all  this,  it  is  necessary  that  the 
child  should  have  been  completely  expelled  from  the  body  of 
the  mother  and  alive  ;  and  the  proof  must  show  this  fact.^ 

On  the  trial  of  a  woman  at  Winchester  Spring  Assizes,  1835, 
it  was  proved  that  the  lungs  were  inflated,  which  the  medical 
witness  said  would  not  have  been  the  case  if  the  child  had  been 
still  born ;  but  he  stated,  in  answer  to  a  question  from  Mr. 
Baron  Gurney,  that  if  the  child  had  died  in  the  birth,  the 
lungs  might  have  been  inflated,  upon  which  he  stopped  the 
case.2  A  single  sob,  it  appears,  is  sufficient  to  inflate  the 
lungs,  though  the  child  died  in  the  act  of  birth .^  A  young 
woman  was  tried  before  Mr.  Baron  Parke  for  the  murder  of 
her  female  child  ;  the  throat  was  cut,  and  the  wound  had 
divided  the  right  jugular  vein ;  the  lungs  floated  in  water,  and 
Avere  found  on  cutting  them  to  be  inflated  ;  but  it  was  deposed 
that  this  test  onl}'  showed  that  the  child  must  have  breathed, 
and  not  that  it  had  been  born  alive,  and  that  there  are  in- 
stances of  children  being  lacerated  in  the  throat  in  the  act  of 
delivery.  On  the  close  of  the  case  for  the  prosecution,  the 
learned  judge  asked  the  jury  whether  they  were  satisfied  that 
the  child  was  born  alive,  and  that  the  wound  was  inflicted  by 
the  prisoner  with  the  intention  of  destroying  life  ;  as,  if  they 
entertained  any  doubt  on  these  points,  it  would  be  unnecessary 
to  go  into  the  evidence  on  behalf  of  the  prisoner.  The  jury 
returned  a  verdict  of  acquittal.*  A  negress  was  recently  tried 
in  Texas  for  the  murder  of  her  illegitimate  child  by  strangula- 
tion. The  body  of  a  healthy,  full-termed  child,  with  a  good 
growth  of  hair  and  well- formed  nails,  was  found,  with  a  string 
wound  twice  around  the  neck  and  tied  in  a  knot  on  the  back  of 
the  neck.  A  medical  witness  for  the  prosecution  was  certain 
that  the  child  was  born  alive,  because  its  eyes  were  partly  open, 
whereas  still-born  children  have  the  eyes  closed.  Pieces  of  the 
lungs  floated  in  water  ;  and  those  organs  were  red,  whereas 
they  would  have  been  of  a  dark  color  if  the  child  had  never 
respired.  For  the  defence  a  physician  testified  that  one  child 
out  of  about  every  fifteen  illegitimate  births  dies,  though  in 
other  cases  the  fatality  is  not  so  great.     It  was  also  shown 

1  See  the  opinion  of  Hurt,  J.,  in  Wallace  v.  State,  10  Tex.  Grim,  App.  255. 

2  Rex  V.  Simpson,  Cummin  on  the  Proof  of  Infanticide,  40. 

*  Rex  V.  Davidson,  1  Hume's  Comm.  ut  supra,  486. 

*  Rex  V.  Grounall,  Worcester  Spring  Assizes,  1837. 


452      THE  BIRTH  OF  A  LIVING  CHILD  MUST  BE  SHOWN. 

that,  ordinarily,  during  delivery,  the  face  of  the  child  is  usually 
towards  its  mother's  back.  This  might  account  for  the  string 
being  tied  on  the  back  of  the  child's  neck.  And  negresses 
having  less  pain  in  delivery  than  white  women,  it  might  have 
been  possible  for  the  mother  of  this  child  to  have  tied  the 
string  around  its  neck  before  it  was  completely  born.^  The 
defendant  was  convicted,  but  on  appeal  tiie  judgment  was  re- 
versed. It  seems  that  an  evacuation  of  the  bowels  after  the 
birth  of  the  child  cannot  be  depended  on  as  an  indication  of 
life,  for  the  evacuation  might  be  caused  by  moving  the  dead 
body  .2 

Where  the  prisoner  was  charged  with  the  murder  of  her 
own  infant  child,  committed  soon  after  birth,  evidence  was  in- 
troduced for  the  State  tending  to  show  that  the  prisoner  gave 
birth  to  the  child  in  a  barn,  and  buried  it  head  downward  in  a 
small  hole  in  the  ground,  covering  the  body  with  hay  and 
straw.  There  were  no  marks  of  violence  upon  its  person.  The 
State  was  allowed  to  show  b}'^  the  testimony  of  an  expert  that 
to  produce  death  it  did  not  require  the  employment  of  force 
sufficient  to  leave  marks  on  the  body,  but  that  there  were 
various  ways  by  which  the  mother  could  have  killed  it,  as  by 
suffocation,  burying  it  in  the  manner  in  which  it  was  found, 
and  other  ways.^ 

1  Wallace  v.  State,  supra. 

2  Sheppard  v.  State,  17  Tex.  Crim.  App.  74. 
State  V.  Morgan,  95  N.  C,  641. 


1 


CHAPTER  III. 

THE  NATURE  OF  THE  MOTIVE. 

It  is  a  further  source  of  uncertainty,  in  cases  of  this  nature, 
that  circumstances  of  presumption,  frequently  adduced  as  in- 
dicative of  the  crime  of  murder,  may  commonly  be  accounted 
for  by  the  agency  of  less  malignant  motives.  Concealment  of 
pregnancy  and  delivery  may  proceed  even  from  meritorious 
motives  ;  as  where  a  married  woman  resorted  to  such  conceal- 
ment in  order  to  screen  her  husband,  who  was  a  deserter,  from 
discovery.^  Severe  must  be  the  struggle  betAveen  the  opposing 
motives  of  shame  and  affection,  before  a  mother  can  contem- 
plate, and  still  more  so  before  she  can  form  and  execute,  the 
dreadful  and  unnatural  resolution  of  taking  away  the  life  of 
her  own  offspring.  The  unhappy  object  of  these  conflicting 
motives  is  commonly  the  victim  of  brutality  and  treachery. 
Deserted  by  a  heartless  seducer,  and  scorned  by  a  merciless 
world,  scarcely  any  condition  of  human  weakness  can  be 
imagined  more  calculated  to  excite  the  compassion  of  the  con- 
siderate and  humane.2  In  England  the  wisdom  and  humanity 
of  the  legislature,  in  accordance  with  the  spirit  of  the  times, 
led,  though  tardily,  to  the  repeal  ^  of  the  cruel  rule  of  presump- 
tion created  by  Statute  21  Jac.  I.  c.  27,  and  suggested  by  a 
corresponding  edict  of  Henry  II.,  of  France,  which  made  the 
concealment  of  the  birth  of  an  illegitimate  child  by  its  mother 
conclusive  evidence  of  murder,  unless  she  made  proof  by  one 
witness  at  least  that  the  child  was  born  dead ;  a  rule  which 
had  too  long  survived  the  barbarous  age  in  which  it  originated, 
and  under  which  it  is  but  too  probable  that  many  women  un- 
justly suffered  ;  *  and  the  endeavor  to  conceal  the  birth  of  a 
child  by  secret  burying,  or  otherwise  disposing  of  the  body, 

^  Rex  V.  Stewart,  Burnett's  C.  L.  ut  supra,  572. 

2  1  Hume's  Comm.  462.  «  1  Hume's  Comm.  486. 

*  St.  43  Geo.  HI.  c.  58,  §  3. 

453 


454 


THE  NATURE  OF  THE  MOTIVE. 


instead  of  being  treated  as  a  conclusive  presumption  of  murder, 
was  made  a  substantive  misdemeanor. ^ 

And  the  difficulty  in  determining  the  question  whether  or 
not  the  child  was  born  alive  led  to  the  passage,  by  some  of 
the  States  of  this  Union,  of  statutes  inflicting  punishment  on 
the  mother  who  endeavors  to  conceal  the  birth  of  her  infant.^ 

The  casualties  which,  even  in  favorable  circumstances,  are 
inseparable  from  parturition,  must  be  incalculably  aggravated 
by  the  perplexities  incidental  to  illegitimate,  clandestine,  and 
miassisted  birth,  from  the  impulses  of  shame  and  alarm,  the 
desire  of  concealment,  the  want  of  assistance  and  sympathy, 
and  occasionally  from  the  mother's  inability  to  render  the  at- 
tentions requisite  to  preserve  infant  life  ;  and  there  have  been 
cases  in  which  even  the  very  means  resorted  to,  under  the  ter- 
ror of  the  moment,  to  facilitate  birth,  have  been  the  uninten- 
tional cause  of  death.  For  these  reasons,  wounds  and  other 
marks  of  violence  are  not  necessarily  considered  as  indicative 
of  wilful  injury,  and  are  not,  therefore,  sufficient  to  warrant 
a  conviction  of  murder,  unless  the  concomitant  circumstances 
clearly  manifest  that  they  were  knowingly  inflicted  upon  a 
body  born  alive.  Nor  are  these  principles  of  construction 
peculiar  to  our  own  law  ;  it  is  believed  that  they  prevail  gen- 
erally, if  not  universally,  in  the  application  of  the  cruninal  law 
to  cases  of  this  nature.'^ 

It  follows  from  these  considerations,  that  though  the  facts 
may  justify  extreme  suspicion  that  death  has  been  the  result 
of  intentional  violence,  yet  if  they  do  not  entirely  exclude 
every  other  possible  hypothesis  by  which  it  may  be  reasonably 
accounted  for,  the  soundest  principles  of  justice,  and  a  proper 
regard  to  the  faflibility  of  human  judgment  in  cases  so  mysteri- 
ous as  these  generally  are,  combine  to  forbid  the  adoption  of 
a  conclusion  so  abhorrent  to  nature  and  humanity,  and  the 
infliction  of  a  punishment  which  admits  of  no  recall. 

It  has  been  thought  that  in  these  cases  the  feelings  of 
humanity  have  been  permitted  to  bias  the  strict  course  of 
judicial  truth,  and  that  countenance  has  been  given  to  subtle 
and  strained  hypotheses  for  the  explanation  of  circumstances 
of  conclusive  presumption.*    It  is  to  be  feared  that  to  some 

1  St.  9  Geo.  IV.  c.  31,  §  14. 

2  Frey  v.  Com.  (Ky.),  7  Grim.  L.  Mag.  72. 

3  Alison's  Princ.  159.  *  Whately  on  Sccojirlary  Punishments.  108. 


THE  NATURE  OF  THE  MOTIVE.  455 

extent  this  opinion  is  correct,  and  if  so,  it  is  a  conclusive  proof 
that  the  law  is  not  in  harmony  with  public  feeling ;  but  it 
may  be  doubted  whether  in  this  reproach  sufficient  weight  has 
always  been  given  to  the  difficulties  inseparably  incidental  to 
the  proof  of  this  crime,  and  Avhether,  in  fact,  acquittals  take 
place  so  frequently  as  has  been  supposed,  where  it  has  been  so 
clearly  and  satisfactorily  proved  as  entirely  to  dispel  all  doubt, 
and  to  produce  complete  and  undoubting  assurance.  It  is, 
however,  well  deserving  of  consideration,  whether  the  ends  of 
public  justice  and  social  protection  might  not  be  better  pro- 
moted by  the  abolition  of  capital  punishment  in  a  class  of 
cases  in  which  society  will  not  concur  in  its  infliction,  and  by 
the  substitution  of  a  minor  punishment,  not  only  in  the  case 
of  concealment  of  birth,  but  generally  in  all  cases  Avhere  death 
has  been  caused  by  the  wilful  omission  of  the  mother  to  take 
the  necessary  means  for  the  preservation  of  infant  life,^  so  as 
to  avoid  on  the  one  hand  the  scandal  and  ill-example  of  ac- 
quittals in  the  face  of  convincing  evidence  of  guilt,  and  on  the 
other,  of  doing  violence  to  public  feeling  by  the  denunciation 
of  capital  punishment  against  a  crime  which,  atrocious  as  it  is, 
is  nevertheless  wanting,  as  an  eminent  prelate  has  remarked, 
"  in  all  the  attributes  which  distinguish  the  murder  of  adults, 
viz.,  the  wickedness  of  the  motive,  the  danger  of  the  community, 
and  the  feeling  of  alarm  and  insecurity  which  it  occasions."  ^ 

1  Code  Penal  d'  Autriche,  prem.  partie,  c.  xvi.  art.  123. 

2  Whatelj'on  Secondary  Punishments,  p.  108,  App.  No.  2.    And  see  Seleo 
tions  from  the  Charges,  etc.,  of  Mr.  Baron  Alderson,  78.  ' 


PART  VL 

THE  FORCE  AND  EFFECT  OF  CIRCUMSTANTIAL 

EVIDENCE. 


CHAPTER  I. 

GENERAL    GROUNDS   OF    THE   FORCE  OF   CIRCUMSTANTIAL 

EVIDENCE. 

In  considering  the  force  and  effect  of  circumstantial  evidence, 
the  credibility  of  the  testimony,  as  distinguished  from  the 
credibility  of  the/ac^,  is  assumed,  since  it  is  a  quality  essential 
to  the  value  of  circumstantial,  in  common  with  all  moral,  evi- 
dence. 

Our  faith  in  moral  evidence  is  grounded,  as  we  have  seen, 
upon  our  confidence  in  the  permanence  of  the  order  of  nature, 
and  in  the  reality  and  fidelity  of  the  impressions  received  by 
means  of  the  senses,  which  place  us  in  connection  with  the 
external  world  and  with  other  other  men ;  and  upon  the  laws 
of  our  moral  and  intellectual  being,  the  immutability  of  moral 
distinctions,  and  the  authority  of  conscience ;  so  that  if  we 
could  correctly  estimate,  and  were  able  to  eliminate,  the 
various  disturbing  influences  which  tend  to  divert  men  from 
the  path  of  truth  and  rectitude,  our  reasonings  and  conclusions 
would  possess  all  the  force  of  demonstration. 

The  silent  workings,  and  still  more  the  fearful  explosions,  of 
human  passion,  which  bring  to  light  the  darker  elements  of 
man's  nature,  must  ever  present  to  the  philosophical  observer 
considerations  of  deep  intrinsic  interest ;  while  to  the  jurist, 
the  moral  and  mechanical  coincidences  which  connect  different 
facts  ^vith  each  other  are  relevant  and  all-important,  as  they 
are  the  intermediate  connecting  links  between  criminal  actions 
456 


GROUNDS  OF  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.     457 

and  the  malignant  feelings  and  dispositions  in  Avhich  they 
originate. 

The  distinct  and  specific  proving  power  of  circumstantial 
evidence,  as  incidentally  stated  in  a  former  part  of  this  volume, 
depends  upon  its  incompatibility  with,  and  incapability  of 
explanation  upon,  any  reasonable  hypothesis,  consistent  ^\'ith 
the  ordinary  course  of  nature,  other  than  that  of  the  truth  of 
the  principal  fact  in  proof  of  which  it  is  adduced  :  so  that,  after 
the  exhaustion  of  every  other  possible  and  admissible  mode  of 
solution,  we  must  either  conclude  that  the  accused  has  been 
guilty  of  the  fact  imputed,  or  renounce  as  illusory  and  deceptive 
all  the  results  of  consciousness  and  experience,  and  all  the 
operations  of  the  human  mind.^ 

Conclusions  thus  formed  are  simple  inferences  of  the  under- 
standing, aided  and  corrected  by  the  application  of  those  rules 
of  evidence  and  those  processes  of  reason  which  sound  and 
well-ripened  experience  has  consecrated  as  the  best  methods 
of  arriving  at  truth  ;  and  they  constitute  that  moral  certainty 
upon  which  men  securely  act  in  all  other  great  and  important 
concerns,  and  upon  which  they  may,  therefore,  safely  rely  for 
the  truth  and  correctness  of  their  conclusions  in  reirard  to  those 
events  which  fall  within  the  province  of  criminal  jurisprudence. 

Many  Continental  codes,  following  the  principles  of  the 
civil  law,  prescribes  imperative  formulae  descriptive  of  the  kind 
and  amount  of  evidence  requisite  to  constitute  legal  proof. 
Those  principles  have  prevailed  also  to  a  certain  extent  in  the 
reception  of  e\idence  in  the  ecclesiastical  and  some  other  courts 
of  special  jurisdiction  in  England,  so  far  as  to  require  the 
testimony  of  a  plurality  of  witnesses.  But  the  diversities  of 
individual  men  render  it  impracticable  thus  definitely  to 
estimate  the  fleeting  shades  and  infinite  combinations  of  human 
motives  and  actions ;  or  thus  to  fix,  with  arithmetical  exact- 
ness, a  common  standard  of  proof,  which  shall  influence  with 
unvarying  intensity  and  effect  the  minds  of  all  men  alike. 
Such  restrictive  rules  are  not  merely  harmless,  nor  simply 
superfluous  ;  they  are  in  some  cases  positively  pernicious  and 
dangerous  to  the  cause  of  truth ;  and  while  they  operate  as 
snares  for  the  conscience  of  the  judge,  ol^liging  him  occasion- 
ally to  determine  contrary  to  his  own  conWctions  of  truth,  they 
are  unnecessary  for  the  protection  of  the  innocent,  and  effective 
'  Mittermaier,  ut  supra,  c.  59. 


458    GROUNDS  OF  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

only  for  the  impunity  of  the  guilty. ^  A  learned  judge  of  one 
of  the  English  ecclesiastical  courts,  after  commenting  on  the 
rule  of  those  courts,  that  one  witness  is  not  sufficient  to  estab- 
lish the  fact  of  adultery,  said  :  "  To  this  authority  I  readily 
submit,  and  I  am  bound  to  do  so ;  but  I  must  honestly  say 
that  I  do  it  upon  compulsion.  I  am  bound  by  this  rule,  and 
so  long  as  it  remains  a  rule  of  these  courts,  so  long  as  more 
evidence  is  required  to  prove  an  act  of  adultery  than  to  find  a 
man  guilty  of  murder,  it  will  be  my  duty  to  obey  that  rule."  ^ 

The  very  few  cases  in  which  our  law  requires  a  particular 
amount  of  evidence,  as  on  trials  for  high  treason,  where  two 
witnesses  are  required,  and  in  cases  of  perjury,  where  there 
must  be  two  witnesses,  or  the  testimony  of  one  witness  con- 
firmed by  some  independent  corroborative  evidence,  are  obvi- 
ously grounded  upon  different  principles  ;  in  the  former,  upon 
motives  of  policy  and  justice,  for  the  protection  of  persons 
charged  with  political  crime  from  becoming  the  victims  of  party 
violence ;  and  in  the  latter,  because  the  mere  contradiction  by 
the  oath  of  a  single  witness  is  obviously  not  of  itself  sufficient 
to  prove  that  the  person  accused  has  been  guilty  of  wilful  false- 
hood .^ 

By  the  Texas  Code  of  Criminal  Procedure*  a  conviction  for 
perjury  cannot  be  had  upon  purely  circumstantial  evidence 
which  is  not  virtually  direct  and  positive.  Such  conviction  can 
be  had  only  upon  confession  in  open  court,  or  upon  the  direct, 
positive  testimony  of  two  Avitnesses,  or  of  one  witness  corrobo- 
rated strongly  by  other  evidence,  establishing  the  falsity  of  the 
statement  assigned  as  perjury.^ 

Under  this  rule,  if  it  is  proved  that  the  witness  who  swore  to 
the  commission  of  a  certain  act,  and  that  he  was  an  eye-witness 
thereof,  was  in  a  distant  part  of  the  country  at  the  time  of  the 
commission  of  the  act,  this,  though  technically  circumstantial, 
is  said  to  be  virtually  positive  evidence  establishing  the  falsity 
of  the  statement,  and  authorizes  conviction.® 

It  may  be  permitted  in  this  place  to  advert  briefly  to  the  law 
concerning  the  corroboration  of  the  testimony  of  an  accom- 

1  Mittermaier,  ut  supra,  c.  8. 

2  Per  Dr.  Lushington,  in  Taylor  v.  Taylor,  6  Eccl.  &  Mar.  Cases,  563. 

3  See  also  7  &  8  Vict.  c.  101,  §  3,  and  8  &  9  Vict.  c.  10,  §  6,  as  to  con- 
firmatory evidence  in  orders  of  affiliation. 

*  Art.  746.  6  Kemp  v.  State,  28  Tex.  Crim.  App.  519. 

6  Mains  v.  State,  26  Tex.  Crim.  App.  14. 


GROUNDS  OF  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.     459 

plice.  In  England,  it  lias  repeatedly  been  laid  down  that  the 
jury  may  act  on  the  testimony  of  an  accomplice  without  con- 
firmatory evidence.^  But  it  has  been  the  almost  uniform  prac- 
tice of  the  judges  to  advise  juries  not  to  convict  upon  the 
evidence  of  an  accomplice  who  is  uncorroborated.  And  this 
practice  has  been  said  to  be  one  "  deserving  of  all  the  reverence 
of  law."  2  Thus  we  find  that  in  England  the  law  on  this  subject 
is  in  an  anomalous  condition.  "  As  the  law  now  stands,"  says 
an  authority  for  whom  we  have  the  highest  respect,  "  it  is  uni- 
versally agreed  by  all  the  authorities  that,  if  the  accomplice 
were  uncorroborated,  a  judge  would  be  wrong  who  did  not 
advise  the  jury  not  to  con\'ict ;  whereas,  the  court  of  criminal 
appeal  would  be  bound  to  pronounce  an  opinion  that  a  judge 
who  did  not  so  advise  them  was  right."  ^ 

In  this  country,  in  those  States  where  the  rule  has  not  been 
altered  by  statute,  it  is  well  settled  that  a  jury  may  convict 
upon  the  uncorroborated  testimony  of  an  accomplice ;  but  it  is 
the  usual  practice  to  advise  a  jury  to  acquit  where  the  testi- 
mony of  the  accomplice  is  uncorroborated.* 

It  is  the  established  rule  in  Michigan  that  it  is  the  province 
of  the  jury  to  determine  whether  an  accomplice  is  to  be  cred- 
ited, and  if  so,  to  what  extent.^  A  learned  justice  of  the 
Supreme  Court  of  Illinois  has  well  stated  the  reasons  for  this 
rule,  thus  :  "  The  tendency  "with,  us  is  to  arbitrarily  exclude  as 
little  as  possible,  but  to  listen  and  give  credence  to  whatever 
tends  to  establish  the  truth.  The  innocent  should  not  be  con- 
victed, nor  should  the  guilty  escape  punishment,  by  reason  of 
any  merely  arbitrary  rule  preventing  the  free  and  full  exercise 
of  the  judgment  as  to  the  truthfulness  or  untruthfulness  of  tes- 
timony, and  the  reliance  to  be  placed  upon  it  in  the  trial  of 
cases.     In  many,  probabl}-^  in  most,  cases,  the  evidence  of  an 

1  Rex  V.  Hastings,  7  C.  &  P.  152  ;  Rex  v.  Attwood,  1  Leach,  464  ;  Rex  r. 
Durham,  Id.  478.  And  see  remarks  of  Lord  Ellenborough,  in  Rex  v.  Jones, 
3  Campbell,  132;  of  Alderson,  B.,  in  Rex  v.  Wilks,  7  C.  &  P.  273;  of 
GURNEY,  J.,  in  R.  V.  Jarvis,  2  Moo.  &  R.  40.  See  also  Reg.  v.  Stubbs,  7 
CoxC.  C.  48. 

2  Lord  Abinger,  C.  B.,  in  Reg.  v.  Farler,  8  C.  &  P.  106. 
8  Roscoe's  Cr.  Ev.  (8th  Am.  Ed.)  202. 

*  Com.  V.  Scott,  123  Mass.  223 ;  Earll  v.  People,  73  111.  328  ;  Wisdom 
V.  People  (Col.),  17  Pac.  519  ;  Ingalls  v.  State,  48  Wis.  647 ;  Dick  v.  State, 
30  Miss.  593  ;  State  v.  Stebbins,  29  Conn.  463  ;  State  v.  Betsall,  11  W. 
Va.  703. 

6  People  V.  Hare,  57  Mich.  505. 


460    GROUNDS  OF  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 


accomplice,  uncorroborated  in  material  matters,  will  not  satisfy 
the  honest  judgment  beyond  a  reasonable  doubt,  and  then  it  is 
clearly  insufficient  to  authorize  a  verdict  of  guilty.  But  there 
may  frequently  occur  other  cases  Avhere,  from  all  the  circum- 
stances, the  honest  judgment  wiU  be  as  thoroughly  satisfied  from 
the  evidence  of  the  accomplice,  of  the  guilt  of  the  defendant, 
as  it  is  possible  it  could  be  satisfied  from  human  testimony,  and 
in  such  a  case  it  would  be  an  outrage  upon  the  administra- 
tion of  justice  to  acquit."  ^ 

In  several  States,  however,  under  the  statute,  a  conviction 
cannot  be  had  upon  the  testimony  of  an  accomplice  unless  he 
be  corroborated  by  such  other  evidence  as  tends  to  connect  the 
defendant  with  the  commission  of  the  crime.^  This  is  the  law 
in  Arizona,^  Iowa,*  New  York,^  Oregon,^  and  Texas.^  And  under 
the  statute  this  rule  is  positive  and  peremptory.^ 

The  dangers  of  accomplice  testimony,  Avhich  led  to  the 
passage  of  these  statutes,  have  been  thus  enlarged  upon  by  a 
learned  judge  of  that  celebrated  criminal  court,  the  Texas  Court 
of  Appeals :  "  The  statements  of  the  witness  are  usually 
plausible,  connected,  and  apparently  sincere.  Usually  his  own 
life  or  liberty  is  at  stake,  and  depending  on  the  conviction  of  his 
alleged  confederate,  and  his  confessed  infamy  is  not  likely  to  deter 
him  from  making  any  statement  he  may  deem  essential  to  his 
own  preservation.  He  fixes  guilt  with  almost  absolute  preci- 
sion ;  and  the  circumstantial  details  he  gives  in  evidence,  added 
to  his  apparent  or  real  desire  to  reveal  all  the  facts  attendant 
upon  and  constituting  the  crime,  are  calculated  to  easily  impose 
upon  a  jury  and  to  cause  them  to  place  entire  confidence  in  the 
truth  of  his  evidence.  They  are  lilcely  to  forget  his  infamy, 
and  in  an  honest  and  laudable  desire  to  punish  the  outrage  upon 
law,  they  adopt  his  evidence  as  a  proper  basis  for  then*  verdict, 
without  much  regard  as  to  whether  it  is  corroborated  or  not."  ^ 
Nevertheless,  it  is  certainly  true  that,  where  this  rule  is  in  force, 
it  may  often  happen,  as  has  been  said,  that  a  jury  is  required, 

1  Remarks  of  Mr.  Justice  Schofield,  in  Collins  v.  People,  98  111.  584. 

2  Ore.  Cr.  Code,  §  172.  «  Terr.  v.  Neligh,  10  Pac.  367. 

4  State  t',  Thornton,  26  la.  80.  5  n.  Y.  Code  of  Crim.  Proc.  §  399. 

6  Note  2,  supra.  ''  Tex.  Code  of  Crim.  Proc.  art.  741. 

8  Coleman  v.  State,  44  Tex.  109.  But  the  corroboration  may  be  by  cir- 
cumstancial  evidence.  State  v.  Miller  (la.),  65  la.  60 ;  State  v.  Stanley, 
48  la.  221. 

'  Remarks  of  Judge  Clark  in  Robertson  v.  State,  9  Tex.  Crim.  App.  209. 


GROUNDS  OF  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.    461 

under  the  law  and  the  evidence,  to  return  a  verdict  of  acquittal 
when  each  member  of  the  jury  may  reasonably  believe  that  the 
defendant  is  not  innocent.^ 

If  it  be  proved  that  a  party  charged  with  crime  has  been 
placed  in  circumstances  which  commonly  operate  as  induce- 
ments to  commit  the  act  in  question,  that  he  has  so  far  yielded 
to  the  operation  of  those  inducements  as  to  have  manifested 
the  disposition  to  commit  the  particular  crime,  that  he  has  pos- 
sessed the  requisite  means  and  opportunities  of  effecting  the 
object  of  his  wishes,  that  recently  after  the  commission  of  the 
act  he  has  become  possessed  of  the  fruits  or  other  consequential 
advantages  of  the  crime,  if  he  be  identified  with  the  corpus 
delicti  by  any  conclusive  mechanical  circumstances,  as  by  the 
impressions  of  his  footsteps,  or  the  discovery  of  any  article  of 
his  apparel  or  property  at  or  near  the  scene  of  the  crime,  if 
there  be  relevant  appearances  of  suspicion  connected  with  his 
conduct,  person,  or  dress,  and  such  as  he  might  reasonably  be 
presumed  to  be  able,  if  innocent,  to  account  for,  but  which 
nevertheless  he  cannot  or  will  not  explain,  if,  being  put  upon 
his  defence  recently  after  the  crime,  under  strong  circumstances 
of  adverse  presmnption,  he  cannot  show  where  he  was  at  the 
time  of  its  commission,  if  he  attempt  to  evade  the  force  of  those 
circumstances  of  presumption  by  false  or  incredible  pretences, 
or  by  endeavors  to  evade  or  pervert  the  course  of  justice,  the 
concurrence  of  all  or  of  many  of  these  cogent  circumstances,  in- 
consistent with  the  supposition  of  his  innocence  and  unopposed 
by  facts  leading  to  a  counter-presumption,  naturally,  reasonably, 
and  satisfactorily  establishes  the  moral  certainty  of  his  guilt,  if 
not  with  the  same  kind  of  assurance  as  if  he  had  been  seen  to  com- 
mit the  deed,  at  least  with  all  the  assurance  which  the  nature  of 
the  case  and  the  vast  majority  of  human  actions  admit.  To  sum 
up,  where  all  the  circumstances  of  time,  place,  motive,  means, 
opportunity,  and  conduct  concur  in  pointing  out  the  accused  as 
the  perpetrator  of  the  crime,  there  must  be  a  moral,  if  not  ab- 
solute, certainty  of  his  guilt.  And  where  these  circumstances 
concur  the  e\ddence  is  powerfully  strengthened  by  the  total 
absence  of  any  trace  or  vestige  of  any  other  agent.'-^     In  such 

1  See  the  language  of  the  court  in  McMillan  v.  State,  7  Tex.  Crim.  App. 
142. 

2  Stark.  Ev.  (10th  Am.  Ed.)  851  ;  Dean  v.  Com.,  33  Grat.  912  ;  Cheverins 
V.  Com.,  8  Crim.  L.  Mag.  760. 


462    GROUNDS  OF  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

circumstances  we  are  justly  warranted  in  adopting,  without 
qualification  or  reserve,  the  conclusions  to  which,  "  by  a  broad, 
general,  and  comprehensive  view  of  the  facts,  and  not  relying 
upon  minute  circumstances  with  respect  to  which  there  may  be 
some  source  of  error,"  ^  the  mind  is  thus  naturally  and  inevitabl}^ 
conducted,  and  in  regarding  the  application  of  the  sanctions  of 
penal  laws  as  a  mere  corollary. 

Nor  can  any  practice  be  more  absurd  and  unjust,  than  that 
perpetuated  in  some  modern  codes,  which,  while  they  admit  of 
proof  by  circumstantial  evidence,  inconsistently  deny  to  it  its 
logical  and  ordinary  consequences.  Thus  the  penal  code  of 
Austria^  prohibits  the  application  of  capital  punishment  to  the 
crime  of  murder,  "  ou  I'inculpe  n'est  convaincu  que  par  le  con- 
cours  des  circonstances ; "  but  nevertheless  the  party  may  be 
sentenced  to  an  imprisonment  of  twenty  years  ;  and  the  same 
indefensible  practice  prevails  in  many  other  States,  though  with 
a  considerable  diversity  as  to  the  maximum  penalty.^  Some  of 
the  codes  of  our  own  States  contain  provisions  which  manifest  the 
extreme  difficulty  of  entirely  casting  aside  this  erroneous  idea. 
Thus  by  the  Georgia  code  it  is  provided  that  where  the  conviction 
in  murder  trials  is  founded  solely  on  circumstantial  evidence,  the 
presiding  judge  may  sentence  to  confinement  in  the  penitentiary 
for  life,  instead  of  to  death.*  How  wise  and  just  the  emphatic 
condemnatory  language  of  the  French  Papinian :  "  Ut  Veritas, 
ita  probatio,  scindi  non  potest :  quas  non  est  plena  Veritas  est 
plena  falsitas,  non  semiveritas  ;  sic,  quas  non  est  plena  probatio, 
plane  nulla  probatio  est."  ^ 

^  Per  Lord  C.  B.  Pollock  in  Reg.  v.  Manning,  supra. 

2  Premiere  Partie,  art.  430.  ^  Mittermaier,  supra,  c.  61. 

*  §  4323.     See  Regular  v.  State,  58  Ga.  264. 

^  Cujas,  Cod.  t.  de  Leg.    And  see  Gabriel,  ftupra,  67. 


CHAPTER  11. 

CONSIDERATIONS    WHICH    AUGMENT  THE    FORCE    OF    CIRCUM- 
STANTIAu  EVIDENCE   IN   PARTICULAR   CASES. 

Such  are  the  considerations  which  constitute  the  force  and 
effect  of  circumstantial  evidence  in  general  ;  but  there  are  some 
collateral  considerations  which  augment  the  force  of  circum- 
stantial evidence  in  particular  cases,  and  greatly  increase  the 
strength  and  security  of  our  convictions,  upon  which  it  will  be 
expedient  to  dilate. 

The  principal  of  these  auxiliary  considerations  arises  from  the 
concurrence  of  many  or  of  several  separate  and  independent 
circumstances  pointing  to  the  same  conclusion,  especially  if  they 
be  deposed  to  by  unconnected  \vitnesses.  In  proportion  to  the 
number  of  cogent  circumstances,  each  separately  bearing  a  strict 
relation  to  the  same  inference,  the  stronger  their  united  force 
becomes,  and  the  more  secure  becomes  our  conviction  of  the 
moral  certainty  of  the  fact  they  are  alleged  to  prove,  as 
the  intensity  of  light  is  increased  by  the  concentration  of  a 
number  of  rays  to  a  common  focus.  Circumstances  altogether 
inconclusive,  if  separately  considered,  may,  by  their  number  and 
first  operation,  especially  when  corroborated  by  moral  coinci- 
dences, be  sufficient  to  constitute  conclusive  proof.^  A  single 
isolated  fact  or  circumstance  might  be  no  evidence  ;  two  or  three 
more  taken  together  might  not  make  evidence  in  the  eye  of  the 
law  ;  but  a  multitude  of  slight  facts  taken  together  as  true  might 
make  evidence  that  would  warrant  a  jury  in  finding  a  verdict 
of  guilty  in  the  most  serious  cases.^  This  is  well  illustrated  by 
an  early  case  in  this  country  where  the  defendant  was  indicted 
for  murder  by  stabbing  with  a  dirk.  A  dirk  without  a  cap 
had  been  found  secreted  near  the  place  of  the  murder,  and  the 

iCoggeshall  v.  U.  S.    ("The  Slavers"),  3  Wallace,  383;  Campbell  v. 
State,  23  Ala.  44. 
a  State  v.  White,  89  N.  C.  462. 

463 


464 


THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 


cap  of  a  dirk,  engraved  with  the  letters  J.  II.,  was  handed  to  a 
witness,  by  a  negro,  a  mile  and  a  half  from  the  place  ;  but  how 
the  negro  came  by  it  no  one  could  tell.  The  handle  was  engraved 
with  the  letters  J.  H.;  and  it  apppeared  that  sixteen  or  seventeen 
years  before  a  witness  purchased  a  dirk,  with  this  engraving, 
for  the  half-brother  of  the  prisoner ;  that  the  half-brother  had 
since  died,  and  the  prisoner  had  admitted  that  a  dirk  was  the 
only  part  of  his  brother's  property  he  had  received.  The  Mntness 
who  heard  him  make  this  admission  saw  a  dirk  in  his  hands, 
mth  J.  II.  engraved  on  the  handle,  but  could  no  farther  identify 
it  with  the  one  produced.  The  dirk  found  secreted  was,  from 
its  general  appearance,  identified  as  tlie  one  produced  on  the 
trial,  and  the  cap  produced  by  the  negro  apparently  fitted  the 
handle.  The  prisoner  had,  before  the  murder,  lent  a  dirk,  not 
identified  in  the  trial,  which  was  returned  to  him  before  the 
murder  was  committed.  There  was  no  proof  that  the  prisoner 
had  ever  been  at  or  near  the  place  of  the  murder.  These  cir- 
cumstances were  all  allowed  to  go  to  the  jury  as  e\ddence  from 
which  they  might  find  that  the  dirk  belonged  to  the  prisoner. 
A  verdict  of  guilty  was  returned.  It  is  manifest  that  any  one 
of  these  circumstances,  standing  alone,  was  of  very  insignificant 
importance  ;  but  the  result  of  the  trial  made  very  clear  the  mag- 
nitude of  their  combined  force. ^  It  is  forcibly  remarked  by  a 
learned  writer,  that  "  the  more  numerous  are  the  particular  an- 
alogies, the  greater  is  the  force  of  the  general  analogy  resulting 
from  the  fuller  induction  of  facts,  not  only  from  the  mere  ac- 
cession of  particulars,  but  from  the  additional  strength  which 
each  particular  derives  by  being  surveyed  jointly  with 
other  particulars,  as  one  among  the  correlative  parts  of  a 
system."  ^  Although  neither  the  combined  effect  of  the  evidence, 
nor  any  of  its  constituent  elements,  admits  of  numerical  com- 
putation, it  is  indubitable  that  the  proving  power  increases  "\^ith 
the  number  of  the  independent  circumstances  and  Avitnesses, 
according  to  a  geometrical  progression.  The  effect  of  a  body 
of  circumstantial  evidence  is  sometimes  compared  to  that  of  a 
chain,  but  the  metaphor  is  obviously  inaccurate.  Circumstan- 
tial e\ddence  is  not  to  be  considered  as  a  chain  and  each  piece 


^  Mendum  v.  Com.,  6  Rand.  704.  See  report  of  this  case  and  comments 
thereon  in  Cowen  &  Hill's  notes  to  Phillips  on  Evidence  (3d  Ed.),  vol.  4, 
p.  598. 

2  Hampden's  Essay,  ut  supra,  63. 


IN  PARTICULAR  CASES.  465 

of  evidence  as  a  link  in  the  chain,  for  then  if  any  one  linlc  broke 
the  chain  would  fall.^  A  chain  cannot  be  stronger  than  its 
weakest  link,  and  hence,  where  the  fact  of  guilt  depends  upon 
proof  of  a  series  of  links  constituting  a  chain,  the  absence  of  a 
single  link  will  be  as  fatal  to  a  conviction  as  the  absence  of  all 
the  links.  But  the  simile  of  a  chain  and  links  can  only  be  ap- 
plicable where  there  is  a  series  of  facts,  one  succeeding  the  other, 
and  each  connected  with  and  dependent  upon  the  other.^  There 
is  no  rule  of  law  which  prescribes  any  definite  number  of  cir- 
cumstances as  necessary  to  the  sufficiency  of  circumstantial 
proof.  There  may  be  and  there  are  cases  where  a  single  cir- 
cumstance Mill  justify  the  jury  in  finding  the  existence  of  an 
inferential  fact.  Unexplained  possession  of  an  article  recently 
stolen  is  of  this  class,  and  from  this  single  circumstance  the  in- 
ference is  frequently  drawn  that  the  party  thus  found  in  pos- 
session is  the  thief.  Circumstances,  however,  may  be  admitted 
in  evidence  which  are  much  less  determinate  and  satisfactory .^ 
"  Ordinarilv,"  said  Chief  Justice  Greene,*  "  in  a  case  restino-  on 
circumstances,  a  linked  arrangement  of  fact  to  fact  is  observable 
in  a  part  or  parts  of  the  evidence.  But  a  guilty  person  is  more 
commonly  hemmed  in  by  a  throng  of  circumstances  than  en- 
closed by  facts  arranged  chain-wise.  Release  from  a  chain 
comes  when  the  weakest  link  gives  away  ;  but  escape  from  a 
crowd  does  not  necessarily  depend  on  the  presence  or  absence 
of  one  or  another,  or  even  perhaps  the  greatest  number,  of  the 
individuals  composing  it." 

Commenting  on  an  instruction  to  the  effect  that  it  was  not 
necessary  that  the  jury  should  be  satisfied  beyond  a  reasonable 
doubt  of  each  link  in  the  chain  of  circumstances  relied  upon  to 
establish  the  defendant's  guilt.  Helm,  J.,  of  the  Supreme 
Court  of  Colorado,  said  :  "  The  metaphor  used  is  inaccurate  and 
liable  to  misconstruction.  .  .  .  This  figure  of  speech  may  perhaps 
be  correctly  applied  to  the  ultimate  and  essential  facts  neces- 
sary to  conviction  in  criminal  cases,  since  if  one  be  omitted,  or 
be  not  proven  beyond  a  reasonable  doubt,  an  acquittal  must 
follow.  It  is  not  true,  however,  that  each  and  every  of  the 
minor  circumstances  introduced  to  sustain  these  ultimate  facts 
must  be  proven  with  the  same  degree  of  certainty.     Some  of 

1  Pollock,  C.  B.,  in  Reg.  v.  Exall,  4  F.  &  F.  922. 

2  Bressler  v.  People,  117  111.  422.  »  Tompkins  v.  State,  32  Ala.  569. 
*  In  Leonard  v.  Terr.,  2  Wash.  Terr.  381;  7  Pac.  872. 


466  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 

these  circumstances  may  fail  of  proof  altogether,  and  be  dis- 
carded from  consideration  by  the  jury,  yet  the  ultimate  fact 
to  establish  which  they  were  presented  may  be  shown  beyond 
a  reasonable  doubt.  Evidence  in  similar  cases  has  been  most 
aptly  likened  to  a  cable.  One,  two,  or  half  a  dozen  strands 
may  part,  yet  the  cable  still  remain  so  strong  that  there  is 
scarcely  a  possibility  of  its  breaking."  ^ 

Again,  an  attempt  has  been  made  to  convey  an  idea  of  the 
force  of  this  kind  of  evidence  by  instituting  a  comparison  be- 
tween it  and  a  bundle  of  rods,  from  which,  one  by  one,  each 
stick  may  be  taken  away  and  easil}^  broken,  though  the  united 
fagot  will  resist  the  strength  that  would  destroy  it.^ 

These  remarks  are  applicable  with  especial  force  to  the  written 
enumeration  of  a  number  of  minute  facts  "  multiplying  beyond 
calculation  the  means  of  detecting  imposture,  serving  the  pur- 
pose of  an  accuser  by  limits  and  allusions  only,  such  as  would 
be  found  in  genuine  correspondence,  not  by  those  clear  and 
positive  manifestations  of  guilt  by  which  an  eager  partisan 
betrays  his  forgeries."  ^ 

"  In  estimating  the  force  of  a  number  of  circumstances  tend- 
ing to  the  proof  of  the  disputed  fact,"  says  Starkie,  "  it  is  of 
essential  importance  to  consider  whether  they  be  dependent  or 
independent.  If  the  facts  A,  B,  C,  D,  be  so  essential  to  the 
particular  inferences  to  be  derived  from  them,  when  established, 
that  the  failure  in  the  proof  of  any  one  would  destroy  the 
inference  altogether,  they  are  dependent  facts.  If,  on  the  other 
hand,  notwithstanding  the  failure  in  proof  of  one  or  more  of 
those  facts,  the  rest  would  still  afford  the  same  inference  or 
probability  as  to  the  contested  fact  which  they  did  before,  they 
would  be  properly  termed  independent  facts.  The  force  of  a 
particular  inference  drawn  from  a'number  of  dependent  facts 
is  not  augmented,  neither  is  it  diminished,  in  respect  of  the 
number  of  such  independent  facts  provided  they  be  established. 
But  the  probability  that  the  inference  itself  rests  u])on  sure 
grounds  is,  in  general,  weakened  by  the  multiplication  of  the 
number  of  circumstances  essential  to  the  proof ;  for  the  greater 

1  Clare  v.  People,  9  Col.  132.  See  also  remarks  of  Pollock,  C.  B.,  in 
Reg.  V.  Exall,  4  F.  &  F.  923  ;  Marion  v.  Stale,  16  Neb.  349  ;  Graves  v. 
People,  18  Colo.  170;  Wharton  v.  State,  73  Ala.  366;  Grant  r.  State,  11 
So.  915  ;  People  v.  Kerr,  6  N.  Y.  Cr.  R.  406. 

2  Carroll  v.  Com.,  84  Pa.  St.  107.    See  also  Dean  v.  Com.,  32  Grat.  912. 

3  Mack.  Hist,  lit  supra. 


IN  PARTICULAR  CASES  467 

the  number  of  circumstances  essential  to  the  proof  is,  the 
greater  latitude  is  there  for  mistake  or  dece}3tion  ;  on  the  other 
hand,  where  each  of  a  number  of  independent  circumstances,  or 
combinations  of  circumstances,  tends  to  the  same  conclusion, 
the  probability  of  the  truth  of  the  fact  is  necessarily  greatly 
increased  in  proportion  to  the  nmnber  of  these  independent 
circumstances/'  * 

The  increase  of  force  produced  by  the  concurrence  of  in- 
dependent circumstances  is  analogous  to  that  which  is  the 
result  of  the  concurrence  of  several  independent  witnesses  in 
relating  the  same  fact ;  and  if  these  elements  admitted  of 
numerical  evaluation,  their  combined  effect  would  be  capable 
of  being  represented  by  a  fraction,  having  for  its  numerator 
the  product  of  the  chances  favorable  to  the  testimony  of  each 
witness,  and  for  its  denominator,  the  sum  of  all  the  chances, 
favorable  and  unfavorable,  the  unfavorable  chances  being  the 
product  of  the  several  deficiencies  of  the  witnesses.  But  if  in 
such  case  the  witnesses  be  dependent  on  each  other,  so  that  the 
testimony  of  the  second  depends  for  its  truth  upon  the  first, 
that  of  the  third  upon  the  second,  and  so  on,  then  the 
effect  of  the  evidence  diminishes  with  every  increase  in  the 
number  of  the  witnesses  or  the  facts,  just  as  an  increase 
in  the  denominator  of  a  fraction  reduces  it  to  one  of  inferior 
value.2 

The  learned  writer  from  whom  we  have  already  quoted  in 
this  connection  has  illustrated  the  subject  by  a  case  which  at 
first  sight  seems  an  extreme  one,  and  it  has  occasionally  been 
pressed  in  argument  with  much  force.^  "  Let  it  be  supposed," 
says  he,  "  that  A.  is  robbed,  and  that  the  contents  of  his  purse 
were  one  penny,  two  sixpences,  three  shillings,  four  half- 
crowns,  five  crowns,  six  half  sovereigns,  and  seven  sovereigns, 
and  that  a  person  apprehended  in  the  same  fair  or  market 
where  the  robbery  takes  place  is  found  in  possession  of  the 
same  remarkable  combination  of  coin,  and  of  no  other,  but 

1  Stark.  Ev.  (10th  Am.  Ed.)  851. 

2  2  Kirwan's  Logic,  c.  vii ;  Hartley's  Obs.  c.  iii.  §  2,  prop.  Ixxx. 

"  According  to  the  pruiciples  of  pure  abstract  mathematical  reasoning," 
there  would  be  no  increase  of  probability  in  favor  of  the  fact.  Stark,  on 
Ev.  (10th  Am.  Ed.)  *  p.  853. 

■^  Trial  of  the  Rev.  Ephraim  Every,  charged  with  tlie  murder  of  Sarah 
Maria  Cornell,  before  the  Supreme  Court  of  Rhode  Island,  May,  1833. 
(Boston. ) 


468  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 

tliat  no  part  of  the  coin  can  be  identified ;  and  that  no 
circumstances  operate  against  the  prisoner  except  his 
possession  of  the  same  combination  of  coin ;  here,  notwith- 
standing the  very  extraordinary  coincidence  as  to  the  number 
of  each  individual  kind  of  coin,  although  the  circumstances 
raise  a  high  probability  of  identity,  yet  it  still  is  one  of  a 
definite  and  inconclusive  nature."  ^  The  probability  that  the 
coins  lost  and  those  discovered  are  the  same  is  so  great,  that 
perhaps  the  first  impulse  of  every  person  unaccustomed  to  this 
kind  of  reasoning  is  unhesitatingly  to  conclude  that  they  cer- 
tainly are  so  ;  yet,  nevertheless,  the  case  is  one  of  probability 
only,  the  degree  of  which  is  capable  of  exact  calculation  ;  but 
if  that  degree  of  probability,  high  as  it  is,  were  sufficient  to 
warrant  conviction  in  the  particular  case,  it  would  be  im- 
possible to  draw  the  distinction  between  the  degree  of  prob- 
abihty  which  would  and  that  which  would  not  justify  the 
infliction  of  penal  retribution  in  other  cases  of  inferior  prob- 
abilit}".  In  the  case  of  a  small  number  of  coins,  two  or  three, 
for  instance,  the  probability  of  their  identity  would  be  very 
weak ;  and  yet  the  two  cases,  though  different  in  degree,  are 
in  principle  the  same ;  and  the  chance  of  identity  is  in  both 
cases  equally  capable  of  precise  determination.  The  learned 
writer  adds,  that  "  although  the  fact  taken  nakedly  and  alone, 
without  any  collateral  evidence,  would  in  principle  be  incon- 
clusive, yet,  if  coupled  with  circumstances  of  a  conclusive 
tendency,  such  as  flight,  concealment  of  the  money,  false  and 
fabricated  statements  as  to  the  possession,  it  might  afford 
strong  and  pregnant  evidence  of  guilt  for  the  consideration  of 
the  jury."  In  like  manner  it  would  be  difficult  to  resist  the 
inference  of  the  identity  of  the  coins,  if  in  the  case  supposed 
they  were  scarce  or  foreign  ones. 

From  the  number  of  qualifying  considerations  connected 
with  facts  which  are  the  subjects  of  testimonial  evidence,  and 
the  impracticability  of  forming  a  numerical  estimate  of  such 
facts,  or  of  the  veracity  of  witnesses,  the  cases  to  which  this 
kind  of  reasoning  is  applicable,  if  there  be  any  such,  must  be 
very  rare.  Every  combination  of  moral  incidents  and  contin- 
gent probabilities  must  give  a  product  of  the  same  nature,  and 
affected  by  the  same  sources  of  error  and  uncertaiaty,  as  affect 

1  Stark.  Ev.  (10th  Am.  Ed.)  854,  n. 


IN  PARTICULAR  CASES.  469 

its  separate  elements ;  and  in  all  judgments  grounded  upon 
circumstantial  evidence,  this  fundamental  difference  between 
moral  and  mathematical  certainty  must  be  borne  in  mind. 
"  It  were  absurd,"  declares  an  eminent  philosopher,  "  to  say 
that  the  sentiment  of  belief  produced  by  any  probabilit}"  is 
proportioned  to  the  fraction  w^hich  expresses  that  probability  ; 
but  it  is  so  related  to  it,  or  ought  to  be  so,  as  to  increase  when 
it  increases,  and  to  diminish  when  it  diminishes."  ^  It  is  mani 
fest,  however,  that  the  consequence  of  the  concurrence  of  a 
plurality  of  witnesses,  and  the  conjunction  of  separate  circum- 
stances, is  to  add  immensely  to  the  force  of  each  ;  and  if  the 
credit  of  the  Avitnesses  be  unimpeachable,  and  the  hypotheses 
of  confederacy  and  error  be  excluded,  then  no  other  conclusion 
can  be  rationally  adopted,  than  that  the  facts  to  which  they 
depose  are  true.  The  case  suggested  is  that  of  circumstantial 
e\ddence  in  its  most  cogent  form ;  and  in  such  case,  the  con- 
clusion to  which  its  various  elements  converge  must  be  regarded 
as  morally  irresistible. 

Independently  of  the  direct  effect  of  that  probability  which 
results  from  a  concurrence  of  independent  witnesses  or  circum- 
stances, the  security  of  our  judgments  is  further  increased  from 
the  considerations,  that  in  proportion  to  the  number  of  such 
witnesses  or  circumstances,  confederacy  is  rendered  more  diffi- 
cult, and  that  increased  opportunities  and  facilities  are  afforded 
of  contradicting  some  or  all  of  the  alleged  facts  if  they  be  not 
true.  To  preserve  consistency  in  a  work  even  professedly  of 
fiction,  where  all  the  writer's  art  and  attention  are  perpetually 
exerted  to  avoid  the  smallest  appearance  of  discrepancy,  is  an 
undertaking  of  no  common  difficulty ;  and  it  is  obvious  that 
the  difficulty  must  be  incomparably  greater  of  preserving  co- 
herency and  order  in  a  fabricated  case  w^hich  must  be  sup- 
ported by  the  confederacy  of  several  persons,  where,  since  by 
the  hypothesis  the  congruity  results  from  artifice,  the  slightest 
variation  in  any  of  the  minute  circumstances  of  the  transaction 
or  of  its  concomitants  may  lead  to  detection  and  exposure. 
On  the  other  hand,  though  if  the  main  features  of  the  case  do 
not  satisfactorily  establish  guilt,  it  is  not  safe  to  rely  upon  very 
minute  circumstances,^  yet,  if  the  statements  of  the  witnesses 
are  based  upon  realities,  the  more  rigorously  they  are  sifted 

1  4  Playfair's  Works,  437. 

*  Per  Mr.  Baron  Rolfe,  in  Reg.  v.  Rush,  Norfolk  Sp.  Ass.,  1849. 


470  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 

the  more  satisfactory  will  be  the  general  result,  from  the  de- 
velopment of  minute,  indirect,  and  unexpected  coincidences  in 
the  attendant  minor  particulars  of  the  main  event.  It  was 
happily  remarked  by  Dr.  Paley,  that  "  the  undesignedness  of 
the  agreements  (which  undesignedness  is  gathered  from  their 
latency,  their  minuteness,  their  obliquity,  the  suitableness  of 
the  circumstances  in  which  they  consist  to  the  places  in  which 
those  circumstances  occur,  and  the  circuitous  references  by 
which  they  are  traced  out)  demonstrates  that  they  have  not 
been  produced  by  meditation  or  by  any  fraudulent  contrivance. 
But  coincidences  from  which  these  causes  are  excluded,  and 
which  are  too  numerous  and  close  to  be  accounted  for  by  ac- 
cidental concurrences  of  fiction,  must  necessarily  have  truth 
for  their  foundation."  ^  The  same  learned  writer  also  justly 
remarks,  that  "  no  advertency  is  sufficient  to  guard  against 
slips  and  contradictions  when  circumstances  are  multiplied."  ^ 
Hence  it  is  observed  in  courts  of  justice,  that  witnesses  who 
come  to  tell  a  concerted  story  are  always  reluctant  to  enter 
into  particulars,  and  perpetually  resort  to  shifts  and  evasions 
to  gain  time  for  deliberation  and  arrangement,  before  they 
reply  directly  to  a  course  of  examination  likely  to  bring  dis- 
credit upon  their  testimony. 

It  must,  nevertheless,  be  admitted  that  history  and  experience 
supply  abundant  evidence  that  it  would  be  most  erroneous  in 
the  abstract  to  decide  a  matter  of  fact  by  numbers,  and  that 
there  have  been  extraordinary  cases  of  false  charges,  most  art- 
fully and  plausibly  supported  by  connected  trains  of  feigned 
circumstances. 

But  considering  the  circumstances  of  the  class  of  persons 
most  frequently  subjected  to  accusation  for  alleged  crime,  de- 
prived of  personal  freedom,  often  friendless,  and  still  more 
frequently  destitute  of  pecuniary  resources  and  professional 
aid,  their  imperfect  means  of  knowing  all  the  facts  proposed 
to  be  proved,  or  the  manner  in  which  they  are  attempted  to 
be  connected,  the  alleged  facility  of  disproof  is  often  more 
imaginary  than  real.  Lord  Eldon  thus  forcibly  expressed  him- 
self on  this  question  :  "  I  have  frequently  thought  that  more 
effect  has  been  given,  than  ought  to  have  been  given,  in  what 

1  Paley's  Evid.  p.  ii.  o.  vii. ;  Whately's  Rhet.  p.  i.  c.  ii.  s.  4 ;  Greenleaf  s 
Ex.  ut  supra,  39. 

2  IIoi'a3 1'aiilina?,  c.  i. 


IN  PARTICULAR  CASES.  471 

is  called  the  summing-up  of  a  judge  on  a  trial,  to  the  fact,  that 
there  has  not  been  the  contradiction  on  the  part  of  the  defence 
which  it  is  supposed  the  witnesses  for  the  accusation  might 
have  received.  ...  It  may  often  happen  that,  in  the  course 
of  a  trial,  circumstances  are  proved  which  have  no  bearing  on 
the  real  question  at  issue ;  and  it  may  also  happen  that  facts 
are  alleged  and  sworn  to  by  witnesses,  which  it  is  impossible 
for  the  accused  party  to  contradict ;  circumstances  may  be 
stated  by  witnesses  which  are  untrue ;  yet  they  may  not  be 
contradicted,  because  the  party  injured  by  them,  not  expecting 
that  that  which  never  had  any  existence  would  be  attempted 
to  be  proved,  cannot  be  prepared  with  opposing  witnesses.  So 
also,  in  cases  in  which  an  individual  Avitness  speaks  to  occur- 
rences at  which  no  other  person  was  present  but  himself,  there 
it  may  be  absolutely  impossible  to  contradict  him."  ^ 

Many  of  the  disadvantages  under  which  prisoners  on  trial 
are  necessarily  placed  have  been  removed  or  diminished  in 
England  ])y  the  provisions  of  various  statutes  ^  which  give  to 
persons  held  to  bail  or  committed  to  prison  a  right  to  require 
copies  of  the  examination  of  the  witnesses  upon  whose  evi- 
dence they  have  been  held  to  bail  or  committed,  on  payment 
of  a  moderate  charge,  and  at  the  time  of  trial  to  inspect  the 
depositions  returned  into  court.^  The  argument  founded  on 
the  means  afforded  of  disproof  may  consequently  now  be  urged 
with  more  justice  and  effect  than  formerl}',  though  still  a  party 
charged  with  crime  has  not  of  right  any  means  of  knowing 
any  facts  which  may  have  been  discovered  in  the  interval  be- 
fore trial,*  or  where  an  indictment  is  found  without  previous 

^  3  Hansard's  Pari.  Deb.,  2d  ser.,  1445. 

2  See  6  &  7  Will.  IV.  c.  114,  §§  3  &  4  ;  11  &  12  Vict.  c.  42,  §  27  ;  22  &  23 
Vict.  c.  33,  §  3  ;  30  &  31  Vict.  c.  35,  §§  3  &  4. 

*  None  of  these  enactments  appear  to  apply  to  the  case  of  commitment 
by  the  coroner  upon  a  verdict  of  murder.  Of  course,  when  the  depositions 
are  returned  into  the  court  before  which  the  trial  is  to  be  had,  the  court 
has  power  by  its  general  jurisdiction  to  order  copies  to  be  given.  Nor  does 
the  statute  apply  to  the  case  of  prisoners  committed  for  re-examination, 
but  only  to  those  who  have  been  fully  committed  for  trial.  Reg.  v.  Lord 
Mayor  of  London,  5  Q.  B.  555  ;  13  L.  J.  M.  C.  67.  So  when  a  prisoner  had 
been  committed  to  jail  till  he  should  give  sufficient  sureties  for  keeping 
the  peace  and  for  appearing  at  the  Sessions  to  do  as  the  court  should  order, 
it  was  held  on  a  rule  for  mandamus  to  justices  to  furnish  copies  of  the 
depositions  taken  against  him  that  lie  was  not  entitled  to  them.  Ex  parte 
Humphreys,  19  L.  J.  M.  C.  189. 

*  Rex  V.  Greenacre,  8  C.  &  P.  32 ;  Reg.  t\  Walford,  Id.  767  ;  Reg.  i\  Con- 
nor, 1  Cox  C.  C.  233. 


4:72  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 

commitment.  But  although  it  is  a  matter  of  comment  to  th(3 
jury,  yet  it  is  held  in  England  to  be  no  objection  in  point  of 
law  that  the  prisoner  has  had  no  intimation  of  the  evidence  to 
be  given  against  him.^ 

There  are,  moreover,  many  cases  which  do  not  afford  the 
alleged  facility  of  disproof  in  any  degree ;  where,  even  admit- 
ting the  truth  of  the  testimony,  the  supposed  presumption  of 
guilt  is  nothing  more  than  a  mistaken  conclusion  from  facts 
which  afford  no  warrant  for  the  inference  of  guilt ;  in  such 
circumstances,  to  attempt  disproof  is  to  attempt  to  grapple 
with  a  shadow  ;  to  require  it,  to  exact  an  impossibility.^ 

The  preceding  considerations  imply  the  necessity  of  con- 
sistency and  general  harmony  in  the  testimony  of  the  different 
witnesses.  All  human  events  must  necessarily  form  a  coherent 
whole ;  and  actual  occurrences  can  never  be  mutually  incon- 
sistent. 

If,  therefore,  the  independency  of  the  witnesses  be  proved,  or 
rendered  highly  probable,  to  the  same  extent  will  the  truth 
of  their  testimony  be  established.^  It  was  objected  in  an 
English  case  that  two  reporters,  whose  accounts  were  relied  on, 

1  Reg.  V.  Greenslade,  11  Cox  C.  C.  412. 

2  Rex  V.  Looker,  Rex  v.  Downing,  and  Rex  v.  Thornton,  supra. 

8  Stark,  on  Ev.  (10th  Am.  Ed.)  829.  "  So  far  does  this  principle  extend," 
continues  the  learned  author,  "  that  in  many  cases,  except  for  the  purpose 
of  repelling  the  suspicion  of  fraud  and  concert,  the  credit  of  the  witnesses 
themselves  for  honesty  and  veracity  may  become  wholly  immaterial. 
Where  it  is  once  established  that  the  witnesses  to  a  transaction  are  not 
acting  in  concert,  then,  although  individually  they  should  be  unworthy  of 
credit,  yet  if  the  coincidences  in  their  testimony  be  too  numerous  to  be 
attributed  to  mere  accident,  they  cannot  possibly  be  explained  on  any 
other  supposition  than  that  of  the  truth  of  their  statement.  .  .  .  The 
nature  of  such  coincidences  is  most  important :  are  they  natural  ones 
which  bear  not  the  marks  of  artifice  and  premeditation  ?  Do  they  occur 
in  points  obviously  material  or  in  minute  and  remote  points  which  are  not 
likely  to  be  material,  or  in  matters  the  importance  of  which  could  not  have 
been  foreseen?  The  number  of  such  coincidences  is  also  worthy  of  the 
most  attentive  consideration ;  human  cunning,  to  a  certain  extent,  can 
fabricate  coincidences,  even  with  regard  to  minute  points,  the  more  effect- 
ually to  deceive  ;  but  the  coincidences  of  art  and  invention  arc  necessarily 
circumscribed  and  limited,  whilst  those  of  truth  are  indefinite  and  un- 
limited ;  the  witnesses  of  art  will  be  copious  in  their  detail  of  circum- 
stances, as  far  as  their  provision  extends  ;  beyond  this  they  will  be  sparing 
and  reserved,  for  fear  of  detection,  and  thus  their  testimony  will  not  be 
even  and  consistent  throughout ;  but  the  witnesses  of  truth  will  be  equally 
ready  and  equally  copious  upon  all  points," 


IN  PARTICULAR  CASES.  473 

were  of  no  authority ;  "  but,"  said  Lord  Mansfield,  "  if  both 
the  reporters  were  the  worst  that  ever  reported,  if  substantially 
they  report  a  case  in  the  same  way,  it  is  demonstrative  of  the 
truth  of  what  they  report  or  they  could  not  agree."  ^ 

If  one  of  two  witnesses  depose  that  he  saw  an  individual  at 
London,  and  the  other  that  he  saw  him  at  York,  at  or  near  the 
same  precise  moment,  the  accounts  are  absolutely  irreconcilable, 
and  one  or  other  of  them  must  by  design  or  by  inadvertence 
be  untrue.  A  diversity  ought  always  to  excite  caution  and  a 
scrupulous  regard  to  the  capacity,  situation,  and  disposition  of 
the  witnesses,  and  especially  to  the  possibility  of  confusion  from 
some  mental  emotion.  "  We  are  frequently  mistaken,"  said 
Lord  Chief  Baron  Pollock,  "  even  as  to  what  we  may  suppose 
we  see  ;  and  still  of  tener  are  we  mistaken  as  to  that  which  we 
suppose  we  hear."  ^  Lord  Clarendon  relates,  that  in  the  alarm 
created  by  the  Fire  of  London,  so  terrified  were  men  with 
their  own  apprehensions,  that  the  inhabitants  of  a  whole  street 
ran  in  a  great  tumult  one  way,  u]ion  the  rumor  that  the 
French  were  marching  at  the  other  end  of  it.^  The  same 
noble  historian  has  also  given  another  anecdote  relating  to 
that  great  calamity,  too  instructive  as  applicable  to  this  sub- 
ject to  be  omitted.  A  servant  of  the  Portuguese  ambassador 
was  seized  by  the  populace  and  pulled  about,  and  very  ill-used, 
upon  the  accusation  of  a  substantial  citizen,  who  was  ready  to 
take  his  oath  that  he  saw  him  put  his  hand  in  his  pocket, 
and  throw  a  fire-ball  into  a  house,  which  immediately  burst 
into  flames.  The  foreigner,  who  could  not  speak  English, 
heard  these  charges  interpreted  to  him  with  amazement. 
Being  asked  what  it  was  that  he  pulled  out  of  his  pocket,  and 
Avhat  it  was  he  threw  into  the  house,  he  answered,  that  he  did 
not  think  he  had  put  his  hand  into  his  pocket,  but  that  he 
remembered  very  well  that  as  he  walked  in  the  street  he  saw 
a  piece  of  bread  upon  the  ground,  which  he  took  up  and  laid 
upon  a  shelf  in  the  next  house,  according  to  the  custom  of  his 
country  ;  which,  observes  a  learned  writer,*  is  so  strong,  that 
the  King  of  Portugal  himself  would  have  acted  with  the  same 
scrupulous  regard  to  general  economy.  Upon  searching  the 
house,  which  was  in  view,  the  bread  was  found  just  within  the 

^  Rex  V.  Genge,  Comp.  16.  2  Reg.  v.  Manning  and  wife,  supra. 

8  u  Clarendon's  Life  and  Continuation,  91  (Oxford  Ed.  1827). 
*  3  Woodeson's  Lect,  on  the  Laws  of  England,  Lect.  53. 


474  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 

door,  upon  a  board  as  described ;  and  the  bouse  on  fire  was 
two  doors  beyond  it,  the  citizen  having  erroneously  concluded 
it  to  be  the  same ;  "  which,"  says  Lord  Clarendon,  "  was  very 
natural  in  the  fright  that  all  men  were  in."  ^ 

But  variations  in  the  relations  by  different  persons  of  the 
same  transaction  or  event,  in  respect  of  unimportant  circum- 
stances, are  not  necessarily  to  be  regarded  as  indicative  of  fraud 
or  falsehood,  provided  there  be  substantial  agreement  in  other 
respects.  True  strength  of  mind  consists  in  not  allowing  the 
judgment,  when  founded  upon  convincing  evidence,  to  be  dis- 
turbed because  there  are  immaterial  discrepancies  which  can- 
not be  reconciled.  When  the  vast  inherent  differences  in  indi- 
viduals with  respect  to  natural  faculties  and  acquired  habits 
of  accurate  observation,  faithful  recollection,  and  precise  narra- 
tion, and  the  important  influence  of  intellectual  and  moral 
culture,  are  duly  considered,  it  will  not  be  thought  surprising 
that  entire  agreement  is  seldom  found  amongst  a  number  of 
witnesses  as  to  all  the  collateral  incidents  of  the  same  principal 
event.  Lord  Ellenborough  said  that  the  general  accordance 
of  all  material  circumstances  rather  confirmed  by  minute 
diversity  than  weakened  the  general  credit  of  the  whole,  and 
gave  it  the  advantage  which  belongs  to  an  artless  and  unartifi- 
cial  tale ;  and  that  minute  variances  exclude  the  idea  of  any 
uniform  contrivance  and  design  in  the  variation,  for  where  it 
is  an  artful  and  prepared  story,  the  parties  agree  in  the  min- 
utest facts  as  well  as  in  the  most  important,^  "  I  know  not," 
says  Paley,  "  a  more  rash  or  unphilosophical  conduct  of  the 
understanding  than  to  reject  the  substance  of  a  story  by  reason 
of  some  diversity  in  the  circumstances  with  which  it  is  related. 
The  usual  character  of  human  testimony  is  substantial  truth 
under  circumstantial  variety.  That  is  what  the  daily  expe- 
rience of  courts  of  justice  teaches.  When  accounts  of  a  transac- 
tion come  from  the  mouths  of  different  witnesses,  it  is  seldom 
that  it  is  not  possible  to  pick  out  apparent  or  real  inconsisten- 
cies between  them.  These  circumstances  are  studiously  dis- 
played by  an  adverse  pleader,  but  oftentimes  with  little  im- 
pression upon  the  minds  of  the  judges.  On  the  contrary,  a 
close  and  minute  agreement  induces  the  suspicion  of  confederacy 
and  fraud."  ^ 

1  3  Clarendon's  Life  and  Continuation,  ut  supra,  86. 

2  Rex  V.  Lord  Cochrane  and  othei-s,  Gurney's  Rep.  456. 
8  Paley's  Evidences,  p.  iii.  c.  1. 


Ii;  PARTICULAR  CASES.  475 

Instances  of  discrepancy  as  to  the  minor  attendant  circum- 
stances of  historical  events  are  numberless.  Lord  Clarendon 
relates  that  the  Marquis  of  Argyle  was  condemned  to  be 
hanged,  and  that  the  sentence  was  performed  the  same  day. 
Burnet,  "Woodrow,  and  Eehard,  writers  of  good  authority,  who 
lived  near  the  time,  state  that  he  was  beheaded,  though  con- 
demned to  be  hanged,  and  that  the  sentence  was  pronounced 
on  Saturday  and  carried  into  effect  on  the  Monday  following.^ 
Charles  11. ,  after  his  flight  from  Worcester,  has  been  variously 
stated  to  have  embarked  at  Briththelmstone  and  at  New  Shore- 
ham.2  Clarendon  states  that  the  ro^'al  standard  was  erected 
about  six  o'clock  of  the  evening  of  the  25th  of  August,  "  a  very 
stormy  and  tempestuous  day ; "  whereas  other  contemporary 
historians  variously  state  that  it  was  erected  on  the  22d  and 
the  24th  of  that  month.^  By  some  historians  the  death  of  the 
Parliamentary  leader  Pym  is  stated  to  have  taken  place  in  the 
month  of  May,  1643;*  while  by  others  it  is  said  to  have 
occurred  in  the  foUoAving  year.  To  come  nearer  to  our  own 
times,  the  author  of  a  celebrated  biographical  memoir  relates, 
that  after  the  Rebellion  of  1745  three  lords  were  executed  at 
Tower-hill ;  whereas  it  is  well  known  that  tivo  onl}'^  underwent 
that  doom,  the  third.  Lord  Nithsdale,  having,  by  the  heroic 
self-devotion  of  his  wife,  effected  his  escape  .the  night  before 
his  intended  execution.^  It  is  remarkable  that  contemporary 
and  early  writers  have  stated  the  lady  in  question  to  have  been 
his  mother.  Such  discrepancies  never  excite  a  serious  doubt 
as  to  the  truth  of  the  principal  facts  with  which  they  are  con- 
nected ;  unless  they  can  be  traced  to  the  operation  of  prejudice 
or  some  other  sinister  motive.^ 

1  Comp.  2  Life  and  Continuation,  266,  and  Paley's  Ev.  p.  iii.  c.  1. 

2  6  Hist,  of  Reb.  541  ;  11  Lingard's  Hist,  of  Eng.  c.  1. 

8  3  Hist,  of  Reb.  190 ;  1  Rushworth "s  Coll.  i.  p.  iii.  783  ;  Mem,  of  Lud- 
low, 15. 

*  Whitelock's  Memorials,  66  :  Baker's  Chron.  570b  ;  4  Hist,  of  Reb.  436  ; 
7  Hume's  Hist.  540,  ed.  1818  ;  1  Godwin's  Hist,  of  the  Comm.  17, 

^  Coxe's  Mem.  of  Walpole,  73. 

^  See  in  4  Clarendon's  Hist.  436,  a  remarkable  instance  of  historical  dis- 
honesty. He  states  that  Pym  died  of  a  loathsome  disease,  morbus  pedic- 
ulosus,  evidently  with  the  design  of  propagating  the  notion  that  it  was 
"a  mark  of  divine  vengeance"  (7  Hume's  Hist.  540);  whereas  he  must 
have  known  that  his  corpse  was  exposed  to  public  view  for  several  days 
before  it  was  interred,  in  confutation  of  this  calumnious  statement. 
Ludlow's  Mem.  31. 


476  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

Still  less  are  mere  omissions  to  be  considered  as  necessarily 
casting  discredit  upon  testimony  which  stands  in  other  respects 
unirapeached  and  unsuspected.  "  The  real  question,"  says  Mr. 
Starkie,  "  must  always  be  whether  the  points  of  variance  and 
of  discrepancy  be  of  so  strong  and  decisive  a  nature  as  to  ren- 
der it  impossible,  or  at  least  difficult,  to  attribute  them  to  the 
ordinary  sources  of  such  varieties,  inattention  or  want  of 
memory."  ^  Omissions  are  generally  capable  of  explanation  by 
the  consideration  that  the  mind  may  be  so  deeply  impressed 
with,  and  the  attention  so  riveted  to,  a  particular  fact,  as  to 
withdraw  attention  from  concomitant  circumstances,  or  prevent 
it  from  taking  note  of  what  is  passing.  It  has  been  justly  re- 
marked, that  "  upon  general  principles,  affirmative  is  better 
than  negative  evidence.  A  person  deposing  to  a  fact,  which 
he  states  he  saw,  must  either  speak  truly,  or  must  have  invented 
his  story,  or  it  must  have  been  sheer  delusion.  Not  so  with 
negative  evidence ;  a  fact  may  have  taken  place  in  the  very 
sight  of  a  person  who  may  not  have  observed  it ;  and  if  he  did 
observe  it,  may  have  forgotten  it."  ^  The  meteor  called  the 
Northern  Lights  is  not  recorded  to  have  been  seen  in  the 
British  Islands  before  the  commencement  of  the  last  century.^ 
Negative  evidence  is  therefore  regarded  as  of  little  or  no  weight 
when  opposed  to  the  positive  affirmative  evidence  of  persons 
of  unimpeachable  credit.  Sometimes,  however,  the  non-rela- 
tion of  particular  facts  amounts  to  the  suppressio  veri,  which 
in  point  of  moral  guilt  may  be  equal  to  positive  mendacity,  and 
destructive  of  all  claim  to  testimonial  credit.* 

'  Stark.  Ev.  (8th  Am.  Ed.)  832. 

2  Sir  Herbert  Jenner,  in  Chambers  v.  the  Queen's  Proctor,  2  Curt.  415. 

3  Whately's  Introd.  Less,  on  Christ.  Ev.  45. 

*  Grafton,  who  was  printer  to  Queen  Elizabeth,  in  his  Chronicles,  pub- 
lished in  1562,  in  writing  the  history  of  King  John,  has  made  no  mention 
of  Magna  Charta.  Perhaps  he  considered  that  his  silence  might  be  deemed 
complimentary  to  that  arbitrary  princess. 


CHAPTER   HI. 

THE   VALUE   OF   CIRCUMSTANTIAL  EVIDENCE. 

In  this  work  we  have  endeavored  to  investigate  the  founda- 
tions of  onr  faith  in  circumstantial  evidence,  to  ascertain  its 
limits  and  its  just  moral  effect,  and  to  illustrate  and  confirm 
the  reasonableness  of  the  jDractical  rules  which  have  been 
established  in  order  to  prevent  the  unauthorized  assumption  of 
facts,  and  to  secure  to  the  relevant  facts  their  proper  weight. 
It  has  been  maintained  that  circumstantial  evidence  is  in- 
herently of  a  different  and  inferior  nature  from  direct  and 
positive  testimony ;  but  that  nevertheless  such  evidence, 
although  not  invariably  so,  is  most  frequently  superior  in 
proving  power  to  the  average  strength  of  direct  evidence ;  and 
that,  under  the  safeguards  and  qualifications  which  have  been 
stated,  it  affords  a  secure  ground  for  the  most  important 
judgments  in  cases  where  direct  evidence  is  not  to  be  obtained. 
And  we  are  able  to  refer,  in  support  of  this  position,  to  the 
recorded  views  of  our  most  distinguished  jurists.  The 
language  of  Mr.  Justice  Park  is  valuable  here  both  on  account 
of  the  eminence  of  that  learned  judge,  and  the  eloquence  with 
which  his  views  are  expressed : 

"The  eye  of  Omniscience  can  alone  see  the  truth  in  all 
cases  :  circumstantial  evidence  is  there  out  of  the  question ;  but 
clothed  as  we  are  with  the  infirmities  of  human  nature,  how  are 
we  to  get  at  the  truth  without  a  concatenation  of  circum- 
stances ?  Though  in  human  judicature,  imperfect  as  it  must 
necessarily  be,  it  somethnes  happens,  perhaps  in  the  course  of 
one  hundred  years,  that  in  a  few  solitary  instances,  owing  to 
the  minute  and  curious  circumstances  which  sometimes  en- 
velop human  transactions,  error  has  been  committed  from  a 
reliance  on  circumstantial  evidence ;  yet  this  species  of  evi- 
dence in  the  eyes  of  all  those  who  are  most  conversant  with 

the  administration  of  justice,  and  most  skilled  in  judicial  pro- 

477 


478  THE  VALUE  OF  CIRCUMSTANTIAL  EVIDENCE. 

ceedings,  is  much  more  satisfactory  than  the  testimony  of  a 
single  individual  who  swears  he  has  seen  a  fact  committed."  ^ 

It  must,  indeed,  be  conceded  that  "  with  the  wisest  laws, 
and  with  the  most  perfect  administration  of  them,  the  innocent 
may  sometimes  be  doomed  to  suffer  the  fate  of  the  guilty  ; 
for  it  were  vain  to  hope  that  from  any  human  institution  all 
error  can  be  excluded."  2  But  certainty  has  not  always  been 
attained  even  in  those  sciences  which  admit  of  demonstration  ; 
still  less  can  unfailing  assurance  be  invariably  expected  in 
investigations  of  moral  and  contingent  truth.  Nor  can  any 
argument  against  the  validity  and  sufficiency  of  circumstan- 
tial evidence  as  a  means  of  arriving  at  moral  certainty  be 
drawn  from  the  consideration  that  it  has  occasionaUy  led  to 
erroneous  convictions,  which  does  not  equally  apply  as  an 
objection  against  the  validity  and  sufficiency  of  moral  evidence 
of  every  kind ;  and  it  is  believed  that  a  far  greater  number  of 
mistaken  sentences  have  taken  place  in  consequence  of  false 
and  mistaken  direct  and  positive  testimony,  than  from  errone- 
ous inferences  drawn  from  circumstantial  evidence.  "Ad- 
mitting," said  Mr.  Justice  Story,  "  the  truth  of  such  cases,  are 
we,  then,  to  abandon  all  confidence  in  circumstantial  evidence, 
and  in  the  testimony  of  Avitnesses  ?  Are  we  to  declare  that 
no  human  testimony  to  circumstances  or  to  facts  is  worthy  of 
belief,  or  can  furnish  a  just  foundation  for  a  conviction  ?  That 
would  be  to  subvert  the  whole  foundation  of  the  administra- 
tion of  public  justice."^  Human  imperfection  is  such  as  to 
render  it  necessary  to  depend  upon  other  evidence  than  such 
as  is  direct.*  It  has,  at  all  times,  been  found  necessary,  in  the 
intelligent  administration  of  the  law,  to  resort  in  a  great 
measure  to  the  force  and  effect  of  circumstances.  A  crim- 
inal act  is  commonly  sought  to  be  performed  in  secrecy,  and 
an   intending  wrong-doer  usually  chooses   his    time,   and  an 

^  Rex  t\  Tliurtell,  Hertford  Ass.,  Jan.  1824,  These  remarks  have  been 
referred  to  with  approving  comment  in  People  v.  Jones,  2  Wheel.  Cr.  C. 
462,  n.  ;  People  v.  Cronin,  34  Cal.  203  ;  People  v.  Morrow,  60  Cal.  142.  The 
cases  in  the  "Theory  of  Presumptive  Proof,"  collected  with  the  object  of 
lessening  our  faitli  in  the  force  of  Circvuustantial  Evidence,  have  been 
several  times  made  the  subject  of  judicial  censure,  and  have  been  declared 
to  be  of  no  authority.     See  People  v.  Videto,  1  Park.  603. 

2  Romilly's  Obs.  on  the  C.  L.  of  England,  74. 

8  Whart.  Cr.  L.  343. 

*  Ludlow,  P.  J.,  in  Com.  v.  Cullen,  36  Leg.  Int.  252. 


THE  VALUE  OF  CIRCUMSTANTIAL  EVIDENCE.  479 

occasion  when  most  favorable  to  concealment,  and  sedulously 
schemes  to  render  detection  impossible.  To  require  in  such 
cases  the  production  of  witnesses  who  saw  the  act  committed 
Avould  be  to  defeat  public  justice,  to  deny  all  protection  to 
society,  to  let  the  greatest  offenders  go  free,  the  most  heinous 
crimes  remain  unpunished.^ 

"  All  evidence,"  to  use  the  language  of  the  court  in  an  early 
case  in  this  country ,2  "  flows  from  persons  and  things.  These 
are  the  only  two  sources  from  which  we  can  expect  testimony, 
and  unless  we  resolve  to  let  all  secret  crimes  go  unpunished, 
all  civil  disputes  to  remain  undecided,  and  to  throw  away 
our  reason,  we  must  act  upon  the  statements  of  persons  and 
things.  I  say  statements  of  things  because,  if  we  consult  the 
experience  of  every  hour,  we  will  be  taught  that  inanimate 
objects  have  voice  as  well  as  sentient  beings.  It  is  in  vain, 
then,  for  man  to  say  that,  because  others  have  failed  in  their 
efforts  to  detect  errors,  he  will  sit  quietly  down  and  perversely 
refuse  to  apply  his  intelligence  to  the  problems  of  life,  whether 
they  encounter  him  in  the  counting-room  or  in  the  jury-box. 
He  might  just  as  well  refuse  to  use  his  legs  because  others  have 
fallen  or  been  killed  in  walking.  He  might  with  equal  pro- 
priety refuse  to  eat  because  others  have  been  poisoned  while 
partaking  of  nourishment.  Some  persons,  admitting  the  force 
of  the  principle  which  actually  compels  us  to  act  upon  evidence, 
still  insist  nothing  but  positive  testimony  should  produce  con 
viction,  and  adhering  tenaciously  to  this  favorite  dogma — those 
who  are  too  timid  or  too  weak  to  exercise  the  reasoning 
faculties  with  which  kind  Providence  has  endowed  them — they 
assail  all  circumstantial  evidence.  A  moment's  reflection,  how- 
ever, must  satisfy  all  candid  minds  of  the  unsoundness  of  such 
a  proposition.  Suppose  for  a  moment  that  this  was  the  rule  of 
being,  and  that  we  had  been  so  constituted  that  we  could  be- 
lieve nothing  unless  it  was  demonstrated  to  us  by  our  senses  or 
by  the  statement  of  an  eye-witness,  what  would  then  be  our 
condition  ?  Of  course  we  could  not  punish  any  crime  unless  it 
were  perpetrated  in  the  presence  of  spectators.  All  secret 
murders,  arson,  burglaries,  forgeries,  and  other  offences  could 
be  committed  with  impunity.     Nor  would  the  mischief  stop 

1  See  remarks  of  Gray.  J.,  in  People  v.  Harris,  136  N.  Y.  423  ;  Dean  v. 
Com.,  32  Grat.  912;  Schoolcraft  v.  People,  117  111.  271  ;  People  v.  Kerr,  6 
N.  Y.  Or.  R.  4G.  2  Com.  v.  Twitchell,  1  Brewst.  571. 


480  THE  VALUE  OF  CIRCUMSTANTIAL  EVIDENCE. 

there.  Few  civil  controversies  could  be  settled  by  juries, 
no  book  of  original  entries  could  be  received  in  evidence, 
no  note  or  obligation  would  avail  unless  there  were  a  sub- 
scribing witness ;  indeed,  this  would  not  be  sufficient,  for, 
if  he  died  before  trial,  the  claim  would  expire  with  him,  and 
insurance  on  the  life  of  the  witness  would  not  even  avoid  the 
difficulty,  for  the  policy  would  die  with  its  attesting  witness. 
For  the  same  reasons  all  receipts  would  perish  with  those  who 
saw  them  signed,  and  all  our  deeds  and  muniments  of  title 
would  be  swept  away  by  the  death  of  the  subscribing  witness, 
and  the  magistrates  before  whom  they  were  acknowledged ; 
all  proof  of  handwriting  by  comparison  be  annihilated  ;  com- 
merce would  be  destroyed,  or  remitted  to  its  infancy  in  bar- 
barous ages.  With  the  abolition  of  legal  punishment  for  crime, 
mob  law  and  vigilance  committees  would  supersede  the  use  of 
courts  and  juries.  The  whole  framework  of  society  would  be 
impaired  if  not  destroyed.  The  absurdity  of  the  prejudice 
against  circumstantial  evidence  may  be  still  further  illustrated 
by  reflecting  for  a  moment  upon  the  use  to  which  Ave  constantly 
and  properly  apply  it.  Not  only  do  business  men  answer 
letters,  pay  drafts,  and  credit  others  to  the  extent  of  millions 
daily  upon  the  testimony  of  circumstances  alone,  but  they  com- 
mendably  carry  this  faith,  as  the  evidence  of  things  unseen, 
into  the  reasoning  which  connects  them  with  the  world  beyond 
our  own.  A  trifling  circumstance — the  fall  of  an  apple — has 
proved  to  the  satisfaction  of  philosophers  the  great  laws  of 
gravitation  which  control  the  motion  of  the  universe.  The 
man  who  denies  the  existence  of  his  Maker  is  properly  regarded 
by  many  as  thereby  evincing  his  want  of  reason.  Yet  what 
proof  have  we  of  this  important  and  accepted  truth  except 
from  circumstances  ?  The  same  kind  of  testimony  is  the  proof 
of  our  belief  in  all  the  great  truths  of  revelation.  If  we  turn 
from  the  world  to  the  great  mechanism  within  us,  we  see  again 
that  no  rational  man  pauses  for  one  instant  to  doubt  the  force 
of  circumstantial  testimony.  What  evidence  have  we  that  it 
is  a  heart  that  beats  or  a  brain  that  thinks  within  us,  except 
from  the  fact  that  these  organs  exist  in  all  similarly  constituted 
beings  ?  And  we  accept  remedies  for  all  the  ills  that  flesh  is 
heir  to  upon  precisely  the  same  faith  as  circumstantial  evidence." 
Having  quoted  this  language.  Judge  Parker,  in  a  late  case, 
said  in  further  illustration  :  "  You  are  in  a  telegraph  office,  and 


THE  VALUE  OF  CIRCUMSTANTIAL  EVIDENCE.  481 

see  the  battery  in  motion — a  message  is  received.  The  station 
at  the  other  end  of  the  line  may  be  a  thousand  miles  distant.  No 
human  eye  ever  saw  the  subtle  fluid  pass  along  the  wire,  and 
yet  you  would  hardly  listen  with  patience  to  the  man  or  the 
argument  undertaken  to  reason  to  you  that  the  message  might 
have  come  through  the  air  or  the  earth  without  the  agency  of 
the  wire ;  and  that  all  your  evidence  to  the  contrary  was  cir- 
cupistantial  and  therefore  unvrorthy  of  regard.  In  short,  a 
scepticism  like  this  would  open  wide  the  door  for  the  perpetra- 
tion of  all  secret  crimes,  would  uproot  our  faith  in  man,  and 
destroy  even  our  belief  in  a  Creator  and  in  a  future  state."^ 

The  legitimate  consequence  of  the  reflection  that  persons 
have  been  convicted  and  have  suffered  the  extreme  penalty  of 
the  law,  on  circumstantial  evidence,  whose  innocence  has  been 
afterwards  made  clear,  ought  to  be,  not  to  produce  an  unrea- 
sonable and  indiscriminate  scepticism,  but  to  inspire  a  salutary 
caution  in  the  reception  and  estimate  of  such  evidence,  and  to 
render  the  legislator  especially  wary  how  he  authorizes,  and 
the  magistrate  how  he  inflicts,  punishment  of  a  nature  which 
admits  neither  of  reversal  nor  mitigation.^  Would  that  the 
total  abolition  of  such  punishment  were  compatible  with  the 
paramount  claims  of  social  security  !  It  is  indispensable,  how- 
ever, under  every  system,  to  the  very  existence  of  society, 
that  the  tribunals  should  act  upon  circumstantial  evidence. 
And  our  judiciary  recognize  this  paramount  necessity  in  declar- 
ing that  a  juror  should  be  set  aside  who  declares  his  unwilling- 
ness to  convict  upon  evidence  of  this  kind.^  Infallibility 
belongs  not  to  man ;  and  even  his  strongest  degree  of  moral 
assurance  must  be  accompanied  by  the  possible  danger  of  mis- 
take ;  but  after  just  effect  has  been  given  to  sound  practical 
rules  of  evidence,  there  will  remain  no  other  source  of  uncer- 
tainty or  fallacy,  than  that  general  liability  to  error  Avhich  is 
necessarily  incidental  to  all  investigations  founded  upon  moral 
evidence,  and  from  which  no  conclusion  of  the  human  judg- 
ment in  relation  to  questions  of  contingent  truth,  whether 
based  upon  direct  or  circumstantial  evidence,  can  be  absolutely 
and  entirely  exempt. 

1  Judge  Parker,  in  U.  S.  v.  Howell,  56  Fed.  R.  2L 

2  1  Chitty  Cr.  L.  459. 

aCheverins  v.  Cora.,  8  Crlm.  L.  Mag.  760;  People  v.  Ah  Chung,  54 Cal. 
398  ;  State  v.  Leabo.  89  Mo.  247. 
31 


CHAPTER  IV. 

CASES  IN  ILLUSTRATION  OP  THE   FORCE   OP  CIRCUMSTANTIAL 

EVIDENCE. 

Many  remarkable  cases  of  this  nature  have  been  given  in 
the  preceding  pages,  in  application  to  the  exemplification  of 
some  specific  doctrine  or  object.  To  these  will  now  be  added, 
as  an  appropriate  commentary  upon  this  discussion  of  the 
scientific  principles  which  govern  the  reception  and  estimate 
of  circumstantial  evidence,  some  of  the  most  curious  and  in- 
structive examples  of  the  force  of  a  cumulation  of  moral  and 
mechanical  facts  which  are  to  be  found  in  the  annals  of  crim- 
inal jurisprudence. 

In  the  autumn  of  1786,  a  young  woman,  who  lived  with  her 
parents  in  a  remote  district  in  Kirkcudbright,  was  one  day 
left  alone  in  the  cottage,  her  parents  having  gone  out  to  the 
harvest-field.  On  their  return  home  a  little  after  midday  they 
found  their  daughter  murdered,  with  her  throat  cut  in  a  most 
shocking  manner.  The  circumstances  in  which  she  was  found, 
the  character  of  the  deceased,  and  the  appearance  of  the  wound, 
all  concurred  in  excluding  any  presumption  of  suicide ;  while 
the  surgeons  who  examined  the  wound  were  satisfied  that  it 
had  been  inflicted  by  a  sharp  instrument,  and  by  a  person  who 
must  have  held  the  instrument  in  his  left  hand.  Upon  opening 
the  body  the  deceased  appeared  to  have  been  some  months 
gone  with  child  ;  and  on  examining  the  ground  about  the  cot- 
tage, there  were  discovered  the  footsteps  of  a  person  who  had 
seemingly  been  running  hastily  from  the  cottage,  by  an  indirect 
road  through  a  quagmire  or  bog  in  which  there  were  stepping- 
stones.  It  appeared,  however,  that  the  person  in  his  haste  and 
confusion  had  slipped  his  foot  and  stepped  into  the  mire,  by 
Avhich  he  must  have  been  wet  nearly  to  the  middle  of  the  leg. 
The  prints  of  the  footsteps  were  accurately  measured,  and  an 
exact  impression  taken  of  them  ;  and  it  appeared  that  they 
482 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  483 

were  those  of  a  person  who  must  have  worn  shoes  the  soles  of 
which  had  been  newly  mended,  and  which,  as  is  usual  in  that 
part  of  the  country,  had  iron  knobs  or  nails  in  them.  There 
were  discovered  also,  along  the  track  of  the  footsteps,  and  at 
certain  intervals,  drops  of  blood  ;  and  on  a  stile  or  small  gate- 
way near  the  cottage,  and  in  the  line  of  the  footsteps,  some 
marks  resembling  those  of  a  hand  which  had  been  bloody. 
Not  the  slightest  suspicion  at  this  time  attached  to  any  par- 
ticular person  as  the  murderer,  nor  was  it  even  suspected  who 
might  be  the  father  of  the  child  of  which  the  girl  was  preg- 
nant. At  the  funeral  a  number  of  persons  of  both  sexes  at- 
tended, and  the  stewart-de])ute  thought  it  the  fittest  opportun- 
ity of  endeavoring  if  possible  to  discover  the  murderer ;  con- 
ceiving rightly  that  to  avoid  suspicion,  whoever  he  was,  he 
would  not  on  that  occasion  be  absent.  With  this  view,  he 
called  together  after  the  interment  the  whole  of  the  men  who 
were  present,  being  about  sixty  in  number.  He  caused  the 
shoes  of  each  of  them  to  be  taken  off  and  measured  ;  and  one 
of  the  shoes  was  found  to  resemble,  pretty  nearly,  the  im- 
pression of  the  footsteps  near  to  the  cottage.  The  wearer  of 
the  shoe  was  the  schoolmaster  of  the  parish,  which  led  to  a 
suspicion  that  he  must  have  been  the  father  of  the  child,  and 
had  been  guilty  of  the  murder  to  save  his  character.  On  a 
closer  examination,  however,  of  the  shoe,  it  was  discovered 
that  it  was  pointed  at  the  toe,  whereas  the  impression  of  the 
footstep  was  round  at  that  place.  The  measurement  of  the 
rest  went  on,  and  after  going  through  nearly  the  whole  num- 
ber, one  at  length  was  discovered  which  corresponded  exactly 
with  the  impressions  in  dimensions,  shape  of  the  foot,  form  of 
the  sole,  and  the  number  and  position  of  the  nails.  William 
Richardson,  the  young  man  to  whom  the  shoe  belonged,  on 
being  asked  where  he  was  the  day  the  deceased  was  murdered, 
replied,  seemingly  without  embarrassment,  that  he  had  been 
all  that  day  employed  at  his  master's  work,  a  statement  which 
his  master  and  fellow-servants,  who  were  present,  confirmed. 
This  going  so  far  to  remove  suspicion,  a  warrant  of  commit- 
ment was  not  then  granted  ;  but  some  circumstances  occurring 
a  few  days  afterAvards,  having  a  tendency  to  excite  it  anew, 
the  young  man  was  apprehended  and  lodged  in  jail.  Upon  his 
examination  he  acknowledged  that  he  was  left-lianded  /  and 
some  scratches  being  observed  on  his  cheek,  he  said  he  had  got 


484  CASES  IN  ILLUSTRATION  OF  THE 

them  when  pulling  nuts  in  a  wood  a  few  days  before.  He  still 
adhered  to  what  he  had  said  of  his  having  been  on  the  day 
of  the  murder  employed  constantly  at  his  master's  work,  at 
some  distance  from  the  place  where  the  deceased  resided  ; 
but  in  the  course  of  the  inquiry  it  turned  out  that  he 
had  been  absent  from  his  work  about  half  an  hour  (the  time 
being  distinctly  ascertained)  in  the  course  of  the  forenoon  of 
that  day  ;  that  he  called  at  a  smith's  shop,  under  the  pretence 
of  wanting  something,  which  it  did  not  appear  he  had  any 
occasion  for ;  and  that  this  smith's  shop  was  in  the  way  to  the 
cottage  of  the  deceased.  A  young  girl,  who  was  some  hun- 
dred yards  from  the  cottage,  said  that  about  the  time  the  murder 
was  committed  (and  which  corresponded  to  the  time  that 
Bichardson  was  absent  from  his  fellow-servants)  she  saw  a  per- 
son exactly  with  his  dress  and  appearance  running  hastily 
toward  the  cottage,  but  did  not  see  him  return,  though  he 
might  have  gone  round  by  a  small  eminence  which  would 
intercept  him  from  her  view,  and  which  was  the  very  track 
where  the  footsteps  had  been  traced.  His  fellow-servants  now 
recollected  that  in  the  forenoon  of  that  day  they  were  em- 
ployed with  Richardson  in  driving  their  master's  carts ;  and 
that  when  passing  by  a  wood,  which  they  named,  he  said  that 
jhe  must  run  to  the  smith's  shop  and  would  be  back  in  a  short 
time.  Pie  then  left  his  cart  under  their  charge  ;  and  having 
waited  for  him  about  half  an  hour,  which  one  of  the  servants 
ascertained  by  having  at  the  time  looked  at  his  watch,  they 
remarked  on  his  return  that  he  had  been  longer  absent  than 
he  said  he  woukl  be,  to  which  he  replied  that  he  stopped  in 
the  wood  to  gather  some  nuts.  They  observed  at  this  time 
one  of  his  stockings  wet  and  soiled  as  if  he  had  stepped  into 
a  puddle  ;  on  which  they  asked  where  he  had  been.  He  said 
he  had  stepped  into  a  marsh,  the  name  of  which  he  men- 
tioned ;  on  which  his  fellow-servants  remarked,  "  that  he  must 
have  been  either  mad  or  drunk  if  he  had  stepped  into  that 
marsh,  as  there  was  a  footpath  which  went  along  the  side  of 
it."  It  then  appeared,  by  comparing  the  time  he  was  absent 
Avith  the  distance  of  the  cottage  from  the  place  where  he  had 
left  his  fellow-servants,  that  he  might  have  gone  there,  com- 
mitted the  murder,  and  returned  to  them.  A  search  was  then 
made  for  the  stockings  he  had  worn  that  day,  which  were 
found  concealed   in   the   thatch    of  the   apartment  where  he 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE  48  5 

slept,  and  appeared  to  be  much  soiled,  and  to  have  some  di'ops 
of  blood  on  them.  The  last  he  accounted  for  by  saying,  first, 
that  his  nose  had  been  bleeding  some  days  before  ;  but  it  being 
observed  that  he  had  worn  other  stockings  on  that  day,  he 
said  he  had  assisted  in  bleeding  a  horse  ;  but  it  was  proved 
that  he  had  not  assisted,  and  had  stood  at  such  a  distance  that 
the  blood  could  not  have  reached  him.  On  examining  the 
mud  or  sand  upon  the  stockings,  it  corresponded  precisely  with 
that  of  the  mire  or  puddle  adjoining  to  the  cottage,  which  was 
of  a  very  particular  kind,  none  other  of  the  same  kind  being 
found  in  that  neighborhood.  The  shoemaker  was  then  dis- 
covered who  had  mended  his  shoes  a  short  time  before,  and  he 
spoke  distinctly  to  the  shoes  of  the  prisoner,  which  Avere  ex- 
hibited to  him,  as  having  been  those  he  had  mended.  It  then 
came  out  that  Richardson  had  been  acquainted  with  the 
deceased,  Avho  Avas  considered  in  the  county  as  of  weak  intel- 
lect, and  had  on  one  occasion  been  seen  with  her  in  a  wood,  in 
circumstances  that  led  to  a  suspicion  that  he  had  had  criminal 
intercourse  with  her ;  and  on  being  taunted  with  having  such 
connection  with  one  in  her  situation,  he  seemed  much  ashamed 
and  greatly  hurt.  It  was  proved  further,  by  the  person  Avho 
sat  next  to  him  when  his  shoes  were  measuring,  that  he 
trembled  much,  and  seemed  a  good  deal  agitated ;  and  that  in 
the  interval  between  that  time  and  his  being  apprehended  he 
had  been  advised  to  fly,  but  his  answer  was,  "  Where  can  I  fly 
to  ? "  On  the  other  hand,  evidence  was  brought  to  show  that, 
about  the  time  of  the  murder,  a  boat's  crew  from  Ireland  had 
landed  on  that  part  of  the  coast,  near  to  the  dwelling  of  the 
deceased ;  and  it  Avas  said  that  some  of  the  crew  might  have 
committed  the  murder,  though  their  motives  for  doing  so  it 
was  difficult  to  explain,  it  not  being  alleged  that  robbery  was 
their  purpose,  or  that  anything  was  missing  from  the  cottages 
in  the  neighborhood.  The  prisoner  Avas  tried  at  Dumfries,  in 
the  spring  of  1787,  and  the  jury  by  a  great  plurality  of  voices 
found  him  guilty.  Before  his  execution  he  confessed  that  he 
was  the  murderer  ;  and  said  it  AA^as  to  hide  his  shame  that  he 
committed  the  deed,  knoAving  that  the  girl  Avas  Avith  child  by 
him.  He  mentioned  also  to  the  clergyman  Avho  attended  him 
where  the  knife  would  be  found  with  Avhich  he  had  perpe- 
trated the  murder ;  and  it  Avas  found  accordingly,  in  the  place 


486 


CASES  IN  ILLUSTRATION  OF  THE 


he  described,  under  a  stone  in  a  wall,  with  marks  of  blood 
upon  it.i 

The  casual  discovery  of  circumstances  which  indicated  the 
existence  of  a  powerful  7notlve  to  commit  the  deed,  the  facts, 
that  it  had  been  committed  by  a  left-handed  man,  as  the 
prisoner  was,  thus  narrowing  the  range  of  inquiry,  and  that 
there  was  an  interval  of  absence  which  afforded  the  prisoner 
the  necessary  opportunity  of  committing  the  crime,  his  false 
assertion  that  he  had  not  been  absent  from  his  work  on  that 
day,  contradicted  as  it  was  by  witnesses  who  saw  him  on  the 
way  to  and  in  the  vicinity  of  the  scene  of  the  murder,  amount- 
ing to  an  admission  of  the  relevancy  and  weight  of  that  circum- 
stance if  uncontradicted,  the  discovery  of  his  footsteps  near  the 
spot,  his  agitation  at  the  time  of  the  admeasurement  and  com- 
parison of  his  shoes  with  the  impressions,  the  discovery  of  his 
secreted  stockings,  spotted  with  blood,  and  soiled  with  mire 
peculiar  to  the  vicinity  of  the  cottage,  the  scratches  on  his  face, 
his  various  contradicted  statements,  all  these  particulars  com- 
bine to  render  this  a  most  satisfactory  case  of  conviction,  and  to 
exemplify  the  high  degree  of  assurance  which  circumstantial 
evidence  is  capable  of  producing. 

A  man  named  Patch  had  been  received  by  Mr  Isaac  Blight, 
a  ship-breaker,  near  Greenland  Dock,  into  his  service  in  the 
year  1803.  Mr.  Blight  having  become  embarrassed  in  his  cir- 
cumstances in  July,  1805,  entered  into  a  deed  of  composition 
with  his  creditors ;  and  in  consequence  of  the  failure  of  this 
arrangement  he  made  a  colorable  transfer  of  his  property  to 
the  prisoner.  It  was  afterwards  agreed  between  them,  that 
Mr.  Blight  was  to  retire  nominally  from  the  business,  which 
the  prisoner  was  to  manage,  and  the  former  was  to  have  two- 
thirds  of  the  profits,  and  the  prisoner  the  remaining  third,  for 
which  he  was  to  pay  £1,250.  Of  this  amount,  £250  Avas  paid 
in  cash,  and  a  draft  was  given  for  the  remainder  upon  a  person 
named  Goom,  which  Avould  become  payable  on  the  16th  of 
September ;  the  prisoner  representing  that  he  had  received  the 
purchase-money  of  an  estate  and  lent  it  to  Goom.  On  the  16th 
of  September  the  prisoner  represented  to  Mr.  Blight's  bankers 
that  Goom  could  not  take  up  the  bill,  and  withdrew  it,  substi- 
tuting his  own  draft  upon  Goom,  to  fall  due  on  the  20th  of 
September.  On  the  19th  of  September  Mr.  Blight  went  to 
1  Rex  V.  Richardson,  Burnett's  C.  L. 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  4S7 

visit  his  wife  at  Margate,  and  the  prisoner  accompanied  him  as 
far  as  Deptford,  and  then  went  to  London,  and  represented  to 
the  bankers  that  Goom  would  not  be  able  to  face  his  draft,  but 
that  he  had  obtained  from  him  a  note  which  satisfied  him,  and 
therefore  they  were  not  to  present  it.  The  prisoner  boarded 
in  Mr.  Blight's  house,  and  the  only  other  inmate  was  a  female 
servant,  whom,  about  eight  o'clock  on  the  same  evening  (the 
19th),  he  sent  out  to  procure  some  oysters  for  his  supper. 
During  her  absence  a  gun  or  pistol  ball  was  fired  through 
the  shutter  of  a  parlor  fronting  the  Thames,  where  the  famil}^, 
when  at  home,  usually  spent  their  evenings.  It  was  low  water, 
and'the  mud  was  so  deep  that  any  person  attempting  to  escape 
in  that  direction  must  have  been  suffocated  ;  and  a  man  who 
was  standing  near  the  gate  of  the  wharf,  which  was  the  only 
other  mode  of  escape,  heard  the  report,  but  saw  no  person. 
From  the  manner  in  which  the  ball  had  entered  the  shutter,  it 
must  have  been  discharged  by  some  person  who  was  close  to 
the  shutter ;  and  the  river  was  so  much  below  the  level  of 
the  house,  that  the  ball,  if  it  had  been  fired  from  thence, 
must  have  reached  a  much  higher  part  than  that  which  it 
struck.  The  prisoner  declined  the  offer  of  the  neighbors  to 
remain  in  the  house  with  him  that  night.  On  the  following 
day  he  wrote  to  inform  Mr.  Blight  of  this  transaction,  stating 
his  hope  that  the  shot  had  been  accidental,  that  he  knew  of  no 
person  who  had  any  animosity  against  him,  that  he  wished  to 
know  for  whom  it  was  intended,  and  that  he  should  be  happy 
to  hear  from  him,  but  much  more  so  to  see  him.  Mr.  Blight 
returned  home  on  the  23d  of  September,  having  previously 
been  to  London  to  see  his  bankers  on  the  subject  of  the  £1,000 
draft.  Upon  getting  home,  the  draft  became  the  subject  of 
conversation,  and  Mr.  Blight  desired  the  prisoner  to  go  to 
London  and  not  to  return  without  the  money.  Upon  his 
return  from  London,  the  prisoner  and  Mr.  Blight  spent  the 
evening  in  the  hack  parlor,  a  different  one  from  that  in  which 
the  family  usually  sat.  About  eight  o'clock  the  prisoner  went 
from  the  parlor  into  the  kitchen,  and  asked  the  servant  for  a 
candle,  complaining  that  he  was  disordered.  The  prisoner's 
way  from  the  kitchen  was  through  an  outer  door  which 
fastened  by  a  spring  lock,  and  across  a  paved  court  in  front  of 
the  house,  which  Avas  enclosed  by  palisadoes,  and  through  a 
gate  over  a  wharf,  in  front  of  that  court,  on  which  there  was 


^8  CASES  IN  ILLUSTRATION  OF  THE 

the  kind  of  soil  peculiar  to  premises  for  breaking  up  ships,  and 
then  through  a  counting-house.  All  of  these  doors,  as  well  as 
the  door  of  the  parlor,  the  prisoner  left  open,  notwithstanding 
the  state  of  alarm  excited  by  the  shot.  The  servant  heard  the 
privy-door  slam,  and  almost  at  the  same  moment  saw  the  flash 
of  a  pistol  at  the  door  of  the  parlor  where  the  deceased  was 
sitting,  upon  which  she  ran  and  shut  the  outer  door  and  gate. 
The  prisoner  immediately  afterwards  rapped  loudly  at  the 
door  for  admittance,  Avith  his  clothes  in  disorder.  He  evinced 
great  apparent  concern  for  Mr.  Blight,  who  was  mortally 
wounded  and  died  on  the  following  day.  From  the  state  of 
the  tide,  and  from  the  testimony  of  various  persons  who  Avere 
on  the  outside  of  the  premises,  no  person  could  have  escaped 
from  them.  In  consequence  of  this  event  Mrs.  Blight  returned 
home,  and  the  prisoner,  in  answer  to  an  inquiry  about  the 
draft  which  had  made  her  husband  so  uneasy,  told  her  that  it  Avas 
paid,  and  claimed  the  Avhole  of  the  property  as  his  own.  Sus- 
picion soon  fixed  upon  the  prisoner,  and  in  his  sleeping-room  Avas 
found  a  pair  of  stockings  rolled  up  like  clean  stockings,  but  Avith 
the  feet  plastered  over  with  the  sort  of  soil  found  on  the  wharf, 
and  a  ramrod  Avas  found  in  the  priv}\  The  prisoner  usually 
Avore  boots,  but  on  the  evening  of  the  murder  he  Avore  shoes  and 
stockings.  It  Avas  supposed  that,  to  prevent  alarm  to  the 
deceased  or  the  female  servant,  the  murderer  must  have 
approached  without  his  shoes,  and  afterAvards  gone  on  the 
wharf  to  throAV  aAvay  the  pistol  into  the  river.  All  the 
prisoner's  statements  as  to  his  pecuniary  transactions  Avith 
Goom  and  his  right  to  draw  upon  him,  and  the  pajnnent  of  the 
bill,  turned  out  to  be  false.  He  attempted  to  tamper  with  the 
serA^ant-girl  as  to  her  evidence  before  the  coroner,  and  urged  her 
to  keep  to  one  account ;  and  before  that  officer  he  made  several 
inconsistent  statements  as  to  his  pecuniary  transactions  Avith  the 
deceased,  and  equivocated  much  as  to  Avhether  he  wore  boots 
or  shoes  on  the  evening  of  the  murder,  as  Avell  as  to  his  owner- 
ship of  the  soiled  stockings,  Avhich,  howeA^er,  were  clearly 
proved  to  be  his,  and  for  the  soiled  state  of  Avliich  he  made  no 
attempt  to  account.  The  prisoner  suggested  the  existence  of 
malicious  feelings  in  tAvo  persons  Avith  AA^hom  the  deceased  had 
been  on  ill  terms ;  but  they  had  no  motive  for  doing  him  any 
injury,  and  it  AA^as  clearly  proved  that  upon  both  occasions  of 
attack  they  Avere  at  a  distance. 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  489 

The  prisoner's  motive  was  to  possess  himself  of  the  business 
and  property  of  his  benefactor  ;  and  to  all  appearance  his 
falsehoods  and  duplicity  were  on  the  point  of  being  discovered. 
His  apparent  incaution  on  the  evening  of  the  murder  could  be 
accounted  for  after  the  preceding  alarm  by  no  other  supposi- 
tion than  that  it  was  the  result  of  premeditation,  and  intended 
to  afford  facilities  for  the  execution  of  his  dark  purposes.  The 
direction  of  the  first  ball  through  the  shutter  excluded  the 
possibility  that  it  had  been  fired  from  any  other  place  than  the 
deceased's  own  premises ;  and  by  a  singular  concurrence  of 
circumstances,  it  was  clearly  proved  that  no  person  escaped 
from  the  premises  after  either  of  the  shots,  so  that  suspicion 
was  necessarily  restricted  to  the  persons  on  the  premises.  The 
occurrence  of  the  first  attack  during  the  temporarv  absence  of 
the  servant  (that  absence  contrived  by  the  prisoner  himself), 
the  discovery  of  a  rami'od  in  the  very  place  where  the  prisoner 
had  been,  and  of  his  soiled  stockings  folded  up  so  as  to  evade 
observation,  his  interference  with  one  of  the  witnesses,  his  false- 
hoods respecting  his  pecuniary  transactions  with  Goom  and 
with  the  deceased,  and  his  attempts  to  exonerate  himself  from 
suspicion  by  implicating  other  persons,  all  these  cogent  circum- 
stances of  presumption  tended  to  show,  not  only  that  the 
prisoner  was  the  only  person  who  had  any  motive  to  destroy 
the  deceased,  but  that  the  crime  could  have  been  committed  by 
no  other  person ;  and  while  all  the  facts  were  naturally  expli- 
cable upon  the  hypothesis  of  his  guilt,  they  were  incapable  of 
any  other  reasonable  solution.  The  prisoner  was  convicted  and 
executed.^ 

A  respectable  farmer,  w^ho  had  been  at  Stourbridge  market 
on  the  18th  of  December,  left  that  place  on  foot  a  little  after 
four  in  the  afternoon,  to  return  home,  a  distance  of  between 
two  and  thpee  miles.  About  half  a  mile  from  his  own  house 
he  was  overtaken  by  a  man,  who  inquired  the  road  for  Kidder- 
minster, and  they  walked  together  for  two  or  three  hundred 
yards,  when  the  stranger  drew  behind  and  shot  him  in  the 
back,  and  then  robbed  him  of  about  eleven  pounds  in  money 
and  a  silver  watch.  After  lingering  ten  days,  he  died  of  the 
wound  thus  received.  The  wounded  man  noticed  that  the 
pistol  Was  long  and  very  bright,  and  that  the  robber  had  on 

1  Surrey  Spring  Ass.,  1806,  coram  L.  C.  B.  Macdonald.  Gumey's  Short- 
hand Report. 


490  CASES  IN  ILLUSTRATION  OF  THE 

a  dark-colored  great-coat,  which  reached  down  to  the  calves  of 
his  legs.  Several  circumstances  of  correspondence  with  the 
description  given  by  the  deceased  conspired  to  fix  suspicion 
upon  the  prisoner,  who  for  about  fourteen  months  had  worked 
as  a  carpenter  at  Ombersley,  seventeen  miles  from  Stourbridge. 
It  was  discovered  that  he  had  been  absent  from  that  place  from 
the  17th  to  the  22d  of  December ;  that  on  the  23d  he  had 
taken  two  boxes,  one  containing  his  working-tools  and  the  other 
his  clothes,  to  Worcester,  and.  there  delivered  them  to  a  carrier, 
addressed  to  John  Wood,  at  an  inn  in  London,  to  be  left  till 
called  for,  the  name  by  which  he  was  known  being  William 
Howe ;  and  that  on  the  25th  he  finally  left  Ombersley,  and 
went  to  London.  Upon  inquiry  at  the  inn  to  which  the  boxes 
were  directed,  it  was  found  that  a  person  answering  the  descrip- 
tion of  the  prisoner  had  removed  them  in  a  meal-man's  cart  to 
the  Bull  in  Bishopsgate  Street,  and  that  on  the  5th  of  January 
they  had  been  removed  from  thence  in  a  cooper's  cart.  Here 
all  trace  of  the  boxes  seemed  cut  off  ;  but  on  the  12th  of  Janu- 
ary the  police  officers  succeeded  in  tracing  them  to  a  widow 
woman's  house,  in  a  court  in  the  same  street ;  when,  upon  ex- 
amining the  box  which  contained  the  prisoner's  clothes,  they 
found  a  screw-barrel  pistol,  a  pistol-key,  a  bullet-mould,  a 
single  bullet,  a  small  quantity  of  gunpowder  in  a  cartridge,  and 
a  fawn-skin  waistcoat ;  Avhich  latter  circumstance  was  impor- 
tant, as  the  prisoner  Avas  seen  in  Stourbridge  on  the  day  of  the 
murder,  dressed  in  a  waistcoat  of  that  kind.  By  remaining  con- 
cealed in  the  woman's  house  the  police  were  enabled  to  appre- 
hend the  prisoner,  who  called  there  the  following  night.  Upon 
his  apprehension,  he  denied  that  he  had  ever  been  at  Stour- 
bridge, or  heard  of  the  deceased  being  shot ;  and  he  accounted 
for  changing  his  name  at  Worcester,  by  stating  that  he  had  had 
a  difference  with  his  fellow  work-people,  and  after\Aiards  that  he 
did  it  to  prevent  his  wife,  whom  he  had  determined  to  leave,  from 
being  able  to  follow  him.  On  being  asked  where  he  was  on 
the  18th  of  December,  he  said  he  believed  at  Kidderminster, 
a  town  about  six  miles  from  Stourbridge.  Upon  the  prisoner's 
subsequent  examination  before  the  magistrates,  he  stated  that 
he  was  at  Kidderminster  on  the  17th  of  December,  and  at 
Stourbridge  on  the  18th  (the  day  of  the  murder),  but  that  he 
was  not  out  of  the  latter  town  from  the  time  of  his  arrival 
there,  at  one  o'clock  in  the  afternoon,  until  half-past  seven  the 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  491 

following  morning;  that  on  the  afternoon  he  went  to  look 
about  the  town  for  lodgings,  and  ultimately  went  to  his  lodg- 
ings about  six  o'clock  in  the  evening.  The  account  which  the 
prisoner  thus  gave  of  himself  was  proved  to  be  a  tissue  of  false- 
hoods. He  had  been  seen  by  several  Avitnesses  between  four 
and  five  in  the  afternoon  of  the  day  in  question,  on  the  road 
leading  from  Stourbridge  toward,  and  not  far  from,  the  spot 
where  the  deceased  was  shot,  and  about  half -past  five  he  was 
seen  going  in  great  haste  in  the  opposite  direction,  toward  Stour- 
bridge. He  afterwards  called  at  two  public-houses  at  Stour- 
bridge, at  the  first  of  them  about  six  o'clock,  and  at  the  other 
about  nine  the  same  evening ;  at  both  of  which  the  attack  and 
robbery  were  the  subjects  of  conversation,  in  which  the  pris- 
oner joined ;  and  he  was  distinctly  spoken  to  as  having  worn 
a  fawn-skin  waistcoat.  On  the  21st  of  December  the  prisoner 
sold  a  watch  of  which  the  deceased  had  been  robbed,  at  War- 
wick, stating  it  to  be  a  family  watch.  But  the  most  conclusive 
circumstance  was,  that  a  letter  was  sent  by  the  prisoner,  while 
in  jail,  to  his  wife,  who,  being  herself  unable  to  read,  had  got 
a  neighbor  to  read  it  to  her,  which  contained  a  direction  to 
remove  some  things  concealed  in  a  rick  near  Stourbridge; 
where,  upon  search  being  made,  were  discovered  a  glove,  con- 
taining three  bullets,  and  a  screw-barrel  pistol,  the  fellow  to 
that  found  in  the  prisoner's  box.  A  gimmaker  deposed  that 
the  bullet  extracted  from  the  Avound  had  been  discharged  from 
a  screw-barrel  pistol,  such  as  that  produced,  and  that  that 
bullet  and  the  bullet  found  in  the  prisoner's  box  had  been  cast 
in  the  same  mould. 

The  prisoner's  denial,  on  his  apprehension,  that  he  had  ever 
been  at  Stourbridge,  or  heard  of  the  act,  though  he  had  been 
seen  near  the  spot  about  the  time  when  the  shot  was  fired, 
denoted  a  consciousness  of  the  fatal  effect  of  any  evidence 
tending  to  establish  the  fact  of  his  presence  there.  The  dis- 
covery of  a  fawn-skin  waistcoat  in  his  possession,  correspond- 
ing with  that  Avorn  by  him  when  seen  at  Stourbridge  on  the 
evening  of  the  murder,  his  possession  and  disposal  of  the 
deceased's  Avatch  Avithin  three  days  after  he  had  deliA^ered  it  to 
his  murderer,  his  false  statement  that  it  was  a  family  Avatch, 
the  correspondence  between  the  AA^eapon  found  in  the  rick  and 
that  found  in  the  prisoner's  box,  and  betAveen  the  bullet 
extracted  from  the  Avound  and  that  found  in  the  same  box,  and 


4!92  CASES  IN  ILLUSTRATION  OF  THE 

the  peculiarity  that  the  deceased  had  been  killed  by  a  wound 
from  a  screw-barrel  pistol, — all  these  circumstances  placed  the 
guilt  of  the  prisoner  beyond  any  reasonable  doubt,  and  there 
was  no  possibility  of  referring  them  to  casual  and  accidental 
coincidence,  or  of  explaining  them  upon  any  hypothesis  com- 
patible with  his  innocence.  He  was  convicted  and  before  his 
execution  confessed  his  guilt.^ 

Three  men,  named  Stnith,  Varnhmn^  and  Timins^  were  tried 
before  Mr.  Justice  Coltman,  at  the  Norfolk  Spring  Assizes, 
1837,  for  the  murder  of  Hannah  Mauslield,  on  Tuesday  the 
3d  of  January  preceding.  The  deceased,  who  was  about 
forty  years  of  age,  lived  alone  in  a  cottage  at  Denver,  on  the 
border  of  a  common,  at  a  distance  from  the  turnpike-road 
leading  from  Hilgay  through  Denver  to  Downham,  and  remote 
from  any  other  house,  except  an  adjoining  cottage  under  the 
same  roof,  occupied  by  a  laborer  and  his  family.  The 
deceased  had  acquired  some  repute  as  a  fortune-teller,  for 
which  purpose  she  kept  by  her  some  money,  which  she  called 
her  bright  money  ;  and  she  possessed  a  quantity  of  plate,  con- 
sisting of  cream  jugs,  table  and  tea-spoons,  sugar-tongs,  salt- 
cellars, and  a  silver  tankard,  which  she  kept  in  a  corner  cup- 
board and  had  frequently  boastfully  displayed.  She  spent  the 
evening  preceding  the  murder  at  her  neighbor's  house,  which 
she  left  about  half-past  eleven ;  her  neighbor's  wife,  being 
engaged  in  washing,  did  not  go  to  bed  till  one  o'clock,  when 
she  disturbed  her  husband,  who,  as  he  lay  awake,  about  two 
o'clock,  heard  a  noise  in  the  deceased's  cottage,  but  hearing 
nothing  further,  went  to  sleep  again.  About  ten  o'clock  the 
following  morning  the  poor  woman  was  found  dead  in  her 
cottage,  with  her  throat  cut  from  ear  to  ear ;  the  cottage  door 
had  been  split  open  by  some  violent  effort,  and  the  cottage 
had  been  robbed  of  her  money  and  treasure.  The  footsteps  of 
two  men  were  traced  from  the  turnpike-road  towards  the 
deceased's  house,  and  from  the  house  into  the  stackyard,  and 
back  again  to  the  footpath,  and  across  the  common  to  a  run 
of  water,  and  thence  to  the  turnpike-road :  one  of  the  foot- 
steps was  very  large,  and  peculiarly  shaped  and  nailed,  there 
being  four  nailmarks  in  the  centre  of  the  heel,  in  a  line  from 
back  to  front,  and  two  on  each  side ;  and  there  were  nailmarks 
also  in  the  waist  of  the  heel,  between  the  sole  and  the  heel, 
1  Stafford  Spring  Ass. ,  1813,  coram  Mr.  Justice  Bayley. 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  493 

and  the  sole  was  very  full  of  nailmarks.  The  prisoner  Timms's 
shoes  exactly  corresponded  with  these  marks ;  the  other  foot- 
step was  a  smaller  one,  and  full  of  such  marks.  The  large 
footmark  proceeding  from  the  house  had  marks  of  blood,  and 
the  smaller  footstep  was  on  the  other  side  of  the  path,  and  the 
centre  of  the  path  was  so  hard  and  beaten  that  a  third  person 
might  have  walked  on  it  without  leaving  any  impression. 
•Only  the  larger  footstep  was  traced  to  the  stackyard,  but 
both  footsteps  were  traced  in  a  direction  toward  and  from  the 
house.  There  was  also  the  footstep  of  a  third  person,  who 
appeared  to  have  been  stationed  for  the  purpose  of  watching 
the  back  door  of  the  adjoining  cottage.  The  thi'ee  prisoners 
had  worked  in  the  neighborhood  as  excavators,  a  few  months 
before  the  murder ;  and  about  twelve  months  previously,  the 
prisoner  Smith,  in  company  with  two  other  men,  had  called  at 
the  adjoining  cottage,  and  asked  if  Hannah  Mansfield  was  at 
home,  supposing  that  to  be  her  cottage,  stating  that  he  had 
lost  some  tools,  about  which  he  wished  to  consult  her.  They 
had  been  loitering  at  various  low  public  houses  in  the  neigh- 
borhood of  the  deceased's  cottage  for  several  days  preceding 
the  murder,  and  left  one  of  those  public  houses,  about  two 
miles  from  her  residence,  where  they  had  spent  the  evening, 
about  eleven  o'clock  on  the  night  of  the  murder.  Three  men, 
corresponding  in  appearance  with  the  prisoners,  one  of  whom 
was  identified  as  the  prisoner  Timms,  were  met  on  the  follow- 
ing morning  about  three  o'clock,  a  mile  from  the  deceased's 
house,  walking  very  fast  along  the  road  from  Denver  to  Down- 
ham  ;  and  about  half- past  eight  the  same  morning  the  same 
three  men  were  seen  at  Leverington,  fourteen  miles  from  Den- 
ver, apparentl}'  fatigued,  and  the  pocket  of  one  of  them  stuffed 
with  something  bulky.  At  Sutton  St.  Edmunds,  about  twenty 
miles  from  Denver,  the  prisoners  stopped  at  a  public  house  to 
refresh  themselves,  and  one  of  them  paid  away  a  very  bright 
and  unworn  sixpence  and  shilling  of  the  year  1817.  After  hav- 
ing stayed  some  hours,  they  proceeded  to  AVhajilode  Drove,where 
they  remained  at  a  public  house  for  several  days,  and  fell  into 
company  with  a  shoemaker,  who  made  two  pairs  of  boots  for 
Varnham  and  Smith,  for  which  Timms  paid  in  a  half-sov- 
reign,  a  half-guinea,  and  a  sixpence.  Yarnham  cut  the  tops 
from  his  old  boots,  and  the  landlord's  wife  burned  the  soles, 
and  thrcAv  the  elates  upon  an  ash-heap,  where  they  were  after- 


494: 


CASES  IN  ILLUSTRATION  OF  THE 


wards  found  by  a  police  officer,  and  they  exactly  fitted  one  of 
the  impressions  made  in  the  snow  near  the  cottage.  "While 
sitting  by  the  fireside  one  evening  at  this  public  house,  the 
prisoner  Smith  laid  hold  of  the  bottom  of  his  pocket,  which 
seemed  heavy,  and  a  bundle  contained  in  a  silk  handkerchief 
dropped  out,  from  which  some  tea-spoons,  a  pair  of  sugar-tongs, 
and  some  glass  fell  on  the  floor ;  the  glass  was  broken,  the 
other  things  he  hastily  collected  and  replaced.  On  the  follow- 
ing day  the  prisoner  Timms  called  upon  the  shoemaker,  who 
had  been  present  on  the  previous  evening,  professedly  to  talk 
about  the  boots  which  he  had  to  make,  and  took  occasion  to 
remark,  that  "  he  need  not  say  anything  about  what  he  had 
seen,  as  it  might  get  the  landlord  into  a  scrape,  though  for 
themselves  they  did  not  care  about  it,  as  they  had  got  the 
things  from  Lisbon."  On  the  Saturday  following  the  prison- 
ers were  traced  to  Whittlesea,  where  they  offered  for  sale  to  a 
gunmaker  a  mass  of  molten  silver,  upwards  of  two  pounds' 
weight,  which  the  prisoner  Timms  said  had  consisted  of 
spoons,  salt-cellars,  and  elegant  things  fit  for  any  table,  a 
description  corresponding  with  the  deceased's  plate;  and  they 
offered  to  purchase  a  pair  of  pistols.  The  silver  was  cut  by 
the  person  to  whom  it  was  offered  into  six  or  seven  pieces,  and 
offered  by  him  for  sale  to  another  person  ;  but  not  having  suc- 
ceeded in  disposing  of  it,  they  gave  his  wife  in  return  for  his 
trouble  a  small  strip  of  it,  weighing  about  an  ounce,  and  three 
keys,  which  were  afterwards  identified  as  having  belonged  to 
the  deceased.  The  prisoners  were  then  traced  to  and  appre- 
hended at  Doncaster.  To  the  officers  they  gave  false  accounts 
of  themselves.  Stains  of  blood  were  found  upon  some  parts 
of  the  clothes  of  all  the  prisoners,  and  the  clothes  of  two  of 
them  appeared  to  have  been  washed  in  order  to  remove  stains. 
On  the  person  of  Smith  were  found  several  pounds  in  money, 
a  picklock  key,  lucif er  matches,  and  a  knife  on  which  was  some 
coagulated  blood  ;  and  on  the  person  of  Timms  was  found, 
wrapped  up  in  a  piece  of  linen,  a  mass  or  wedge  of  molten  sil- 
ver. With  several  of  their  fellow-prisoners  Smith  and  Yarnham 
conversed  upon  the  subject  of  this  cruel  action  in  language  of 
disgusting  coarseness  and  brutality ;  which  implied  guilty 
knowledge  of  and  participation  in  the  crime,  since  they 
expressed  confidence  of  security  if  their  companions  remained 
silent,  as  nobody  had  seen  them  go  to  the  house. 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  495 

The  knowledge  which  the  prisoners  possessed  of  the  locality 
of  the  deceased's  cottage,  and  of  her  character  and  circum- 
stances, their  presence  in  the  vicinity  at  so  suspicious  an  hour, 
in  the  inclement  season  of  mid-winter,  so  close  upon  the  time 
when  the  deceased  was  murdered,  their  subsequent  wanderings, 
apparently  without  an}^  object,  their  profuse  expenditure  of 
money,  their  apparently  wanton  destruction  of  valuable  arti- 
cles of  apparel,  unaccountable  except  on  the  supposition  that 
they  were  the  pregnant  evidences  of  guilt,  their  possession  of 
so  much  money  and  molten  silver  when  apprehended,  the  cor- 
respondence of  the  shoe-marks  about  the  cottage  with  the 
shoes  of  two  of  the  prisoners,  and  the  possession  of  the 
deceased's  keys, — the  concurrence  of  these  otherwise  inexpli- 
cable facts  could  not  be  rationally  accounted  for  except  bv  the 
conclusion  of  the  guilt  of  the  prisoners,  who  made  a  full  con- 
fession, two  of  whom.  Smith  and  Timms,  were  executed. 

A  foreigner,  named  Courvoisier,  was  tried  at  the  Central 
Criminal  Court  in  London  for  the  murder  of  Lord  William 
Russell,  an  elderly  gentleman,  seventy-five  years  of  age,  a 
widower,  who  lived  in  Norfolk  Street,  Park  Lane.  The  de- 
ceased's family  consisted  of  the  prisoner,  who  had  been  in  his 
service  as  valet  about  five  weeks,  and  of  a  housemaid  and  cook, 
who  had  lived  with  him  three  years,  beside  a  coachman  and 
groom  who  did  not  live  in  the  house.  On  the  6th  of  May  the 
female  servants  went  to  bed  as  usual,  and  the  housemaid  on 
going  to  bed  lighted  a  fire  and  set  a  rushlight  in  her  master's 
bedroom,  which  presented  its  usual  appearance  ;  the  prisoner 
remained  sitting  up  to  warm  his  bed.  The  housemaid  rose 
about  half-past  six  on  the  following  morning,  and  on  going 
downstairs  knocked,  as  usual,  at  the  prisoner's  door.  At  her 
master's  door  she  noticed  the  warming-pan,  which  was  usually 
taken  downstairs ;  on  going  into  a  back  drawing-room  she 
found  the  drawers  of  her  master's  desk  open,  his  bunch  of  kevs 
lying  on  the  carpet,  and  a  screw-driver  lay  on  a  chair.  In  the 
hall  his  lordship's  cloak  was  found  neatly  folded  up,  together 
with  a  bundle,  containing  a  variety  of  valuable  articles,  most 
of  them  portable,  such  as  a  thief  would  ordinarily  put  in  his 
pocket  instead  of  deliberately  packing  up.  In  the  dining-room 
she  found  several  articles  of  plate  scattered  about.  The  street- 
door,  though  shut,  was  unfastened,  but  the  testimony  of  the 
police,  who  passed  the  house  many  times  in  the  night,  rendered 


496 


CASES  IN  ILLUSTRATION  OF  THE 


it  very  unlikely  that  any  person  had  left  it  in  that  direction. 
Alarmed  by  these  appearances,  the  housemaid  called  the 
prisoner,  and  found  him  dressed,  though  only  a  few  moments 
had  elapsed  since  she  had  knocked  at  his  door,  which  was  a 
much  shorter  time  than  he  usually  took  to  dress.  They  went 
together  downstairs;  and  after  examining  the  state  of  the 
dining-room  and  the  prisoner's  pantry,  where  the  cupboard 
and  drawers  were  all  found  opened,  they  proceeded  to  their 
master's  bedroom,  where  he  was  found  with  his  throat  cut,  in 
a  manner  which  must  have  produced  instant  death.  His  lord- 
ship usually  placed  his  watch  and  rings  on  his  dressing-table ; 
but  they  had  been  taken  away,  and  his  note-cases,  in  one  of 
which  the  prisoner  stated  that  he  had  seen  a  £10  and  a  £5 
note  a  few  days  before,  were  open  and  emptied  of  their  con- 
tents. A  book  was  found  on  the  floor,  and  his  lordship's 
spectacles  lay  upon  it,  and  there  was  a  candlestick  about  four 
or  five  feet  from  the  bed  with  a  candle  burned  to  the  socket. 
These  articles  appeared  to  have  been  so  placed  to  create  the 
impression  that  his  lordship  had  been  murdered  while  reading ; 
but  he  was  not  accustomed  to  read  in  bed,  and  only  so  much 
of  the  rushlight  was  burned  as  would  have  been  consumed  in 
about  an  hour  and  a  half,  though  the  candle  Avas  completely 
burned  away.  The  prisoner  stated  that  he  left  his  master 
reading.  Upon  the  door  of  the  prisoner's  pantry,  leading  to  a 
back  area,  were  marks  as  if  it  had  been  broken  into,  and  the 
prisoner  suggested  that  the  thieves  had  entered  by  that  door ; 
but  they  appeared  to  have  been  made  from  within,  and  none  of 
them  had  been  made  by  the  application  of  sufficient  force  to 
break  open  the  door ;  the  bolts  appeared  not  to  have  been  shot 
at  the  time,  and  the  socket  of  one  of  them  had  been  wrenched 
off  when  the  door  was  open.  The  marks  on  this  door  ap- 
peared to  have  been  made  with  a  bent  poker  found  in  the 
pantry.  It  was  clear  that  no  person  had  entered  the  premises 
from  the  rear,  since  in  one  direction  they  could  have  been  ap- 
proached only  by  passing  over  a  wall  covered  with  dust,  which 
would  have  retained  the  slightest  impression ;  and  on  the 
other,  the  party  must  have  passed  over  some  tiling  which  was 
so  old  and  perished  as  necessarily  to  have  been  damaged  by 
the  passing  of  any  person  over  it ;  while  from  the  testimony  of 
the  police  it  was  equally  clear  that  no  person  had  escaped 
through  the  front  door.     For  several  days  the  missing  articles 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  49Y 

could  not  be  found,  and  the  case  appeared  to  be  wrapped  in 
impenetrable  myster}" ;  but  at  length,  upon  a  stricter  search, 
his  lordship's  rings  and  Waterloo  medal,  five  sovereigns,  and  a 
£10  note,  the  latter  of  which  had  been  removed  from  his  note- 
case, were  found  concealed  behind  the  skirting-board  in  the 
prisoner's  pantry  ;  and  beneath  the  leaden  covering  of  a  sink 
was  found  his  lordship's  watch,  and  several  other  articles  were 
also  found  in  other  parts  of  the  same  room.  But  a  quantity  of 
plate  which  had  been  stolen  still  remained  undiscovered,  not- 
withstanding the  most  diligent  efforts  to  discover  it ;  and  its 
non-production  was  the  only  circumstance  which  gave  any  ap- 
parent conntenance  to  the  possibihty  that  the  house  had  been 
robbed  on  the  night  of  the  murder,  by  parties  who  had  es- 
caped. The  mystery  was  cleared  up,  however,  in  a  very 
extraordinary  manner  during  the  progress  of  the  trial.  About 
a  fortnight  before  the  murder,  the  prisoner  had  left  a  parcel  in 
the  care  of  a  hotel-keeper  with  whom  he  had  formerly  lived  as 
waiter,  whose  curiosity  was  excited  to  examine  its  contents  by 
reading  in  a  newspaper  a  suggestion  that,  as  the  prisoner  was  a 
foreigner,  he  had  probably  left  the  plate  at  one  of  the  foreign 
hotels  in  London.  The  parcel  was  found  to  contain  the  miss- 
ing plate.  The  prisoner  had  been  known  in  this  situation  only 
by  his  Christian  name,  which  circumstance  accounted  for  the 
fact  that  suspicion  had  not  been  sooner  excited  by  the  account 
of  the  murder  and  robbery  which  had  appeared  in  the  daily 
journals.  This  discovery,  in  conjunction  with  the  simulated 
appearances  of  external  violence  and  robbery,  and  the  con- 
chisive  evidence  that  the  premises  had  not  been  entered  from 
without,  made  it  certain  that  the  robbery  of  the  plate  and  tbe 
murder  had  been  committed  by  one  of  the  inmates ;  while  the 
manner  and  place  of  concealment,  and  the  artless  and  satis- 
factory account  given  by  the  female  servants,  rendered  it 
equally  clear  that  the  prisoner,  and  he  alone,  could  have  been 
the  perpetrator  of  this  cruel  action.  He  made  a  confession  of 
his  guilt,  and  was  executed  pursuant  to  his  sentence.^ 

How  was  accused  of  the  murder  of  one  Church,  and  the 
evidence  relied  on  for  conviction  was  wholl}^-  circumstantial. 
The  deceased  had  been  called  out  of  bed  at  one  o'clock  in  the 
morning  by  a  person  pretending  to  have  a  letter  for  him,  and  as 
he  opened  the  door  was  shot  dead  on  the  spot.     The  following 

1  Sessions  Papers,  1840  ;  2  Townsend's  St.  Tr.  244. 
32 


498 


CASES  IN  ILLUSTRATTON  OF  THE 


facts  are  set  forth  by  the  reporter  as  having  been  developed  on 
the  trial :  The  ])risoner  had,  on  various  occasions,  complained 
that  Church  had  defrauded  him  of  his  property,  and  had 
threatened  to  avenge  himself.  On  one  occasion  he  had  gone  so 
far  as  to  threaten  to  take  the  life  of  the  deceased,  and  had  en- 
deavored to  persuade  a  person  to  lend  him  aid  in  putting  Church 
out  of  the  way.  On  the  night  of  the  crime  the  accused  left  a 
village  a  few  miles  distant  from  the  deceased's  residence,  in  time 
to  have  committed  the  murder,  and  at  the  tim.e  of  leaving  had 
something  under  his  coat  which  bore  the  appearance  of  a  rifle. 
On  the  morning  after  the  murder  the  horse  which  the  prisoner 
rode  the  evening  before  was  found  wet  with  sAveat,  and  the 
prisoner  made  false  statements  about  the  horse  being  sick. 
The  ball  with  which  the  fatal  wound  was  inflicted  on  the 
deceased  was  almost  identical  in  weight  with  the  balls  found 
with  the  prisoner's  rifle ;  and  the  patch  and  wadding  found 
near  where  the  deceased  fell  were  similar  to  those  in  the 
prisoner's  rifle-box.  The  prisoner  was  convicted,  and  while  he 
was  awaiting  execution,  made  a  circumstantial  confession.^ 

The  recent  case  of  People  v.  Johnson  ^  affords  a  good  illus- 
tration. The  death  by  violence  was  established  by  direct  evi- 
dence, and  the  dead  body  with  marks  of  murder  upon  it  had 
been  found.  The  defendant  appealed  from  a  judgment  of  con- 
viction on  the  ground  that  the  evidence  (circumstantial)  upon 
which  the  verdict  had  been  rendered  was  inconclusive.  The 
Court  of  Appeals,  in  sustaining  the  conclusion  of  the  jury,  set 
out  the  following  comprehensive  statement  of  the  incriminat- 
ing facts  : 

"  A  sufficient  and  adequate  motive  for  the  crime,  consisting 
of  revenge  for  a  supposed  injury,  and  supplemented  by  a  desire 
to  obtain  the  money  known  to  have  been  paid  to  the  deceased 
and  which  was  stolen  from  his  person,  a  convenient  and  pre- 
sumably safe  opportunity  arising  from  the  prisoner's  familiarity 
with  the  premises,  his  knowledge  of  a  place  in  which  to  hide 
until  all  the  occupants  of  the  building  had  departed  after  their 
usual  habit,  and  leaving  the  engineer  alone  and  unprotected 
while  closing  the  premises  and  preparing  for  his  own  depart- 
ure ;  the  presence  of  the  tools  and  instruments  suflicient  to 
effect  the  killing,  the  existence  and  locality  of  which  were  Avell 
known  to  the  prisoner,  and  which  were  found  near  by  with 
1  2  Wheel.  Cr.  Cas.  410.  2  140  N.  Y.  350. 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  499 

blood  and  hair  upon  them  ;  the  track  of  the  murderer  from  the 
basement  to  the  washing  closet  on  the  fourth  floor,  shown  l)y 
the  bloody  finger-marks  on  the  doors  passed  in  the  ascent,  and 
the  stains  upon  the  towel  used  in  an  effort  to  efTace  the  marks 
which  the  struggle  had  left  upon  him  ;  the  theft  of  the  black 
trousers  left  on  the  same  floor,  and  which,  on  the  next  day, 
were  found  in  the  possession  of  the  prisoner,  Avho  sought  to 
dispose  of  them  to  others ;  his  display  immediately  after  the 
killing  of  an  amount  of  money,  and  in  denominations  closely 
corresponding  to  that  which  was  taken  from  the  pockets  of  the 
deceased,  coupled  with  the  fact  that  before  the  killing  the 
prisoner  was  penniless,  unable  to  pay  his  rent,  borrowing  small 
sums  where  he  could,  out  of  work  and  earning  nothing,  and 
pawning  his  clothing  to  relieve  his  want ;  his  manifest  false- 
hood as  to  the  source  from  which  he  obtained  the  money  ;  his 
effort  to  frame  and  prove  a  false  defence  of  absence  in  New 
Jersey  on  the  day  of  the  homicide ;  the  blood  stains  on  the 
clothing  and  shoes  he  wore  that  day  ;  his  attempt  to  avoid  and 
escape  arrest  when  the  crime  became  known  and  suspicion 
aroused  ;  the  fact  that  while  offering  himself  as  a  witness  ami 
protesting  with  a  vehemence  almost  amounting  to  blasphemy 
that  he  was  innocent,  he  nevertheless  gave  no  explanation  of 
his  possession  of  the  stolen  trousers,  or  of  the  money  which  he 
had  displayed,  but  remained  utterly  silent  where  explanation 
was  easy  and  imperative  if  innocence  existed," 

The  remarkable  case  of  JJdderzook  v.  Com}  showed  a  com- 
bination of  two  to  cheat  insurance  companies,  and  the  murder 
of  one  by  the  other  to  reap  the  fruit  of  the  fraud. 

W.  S.  Goss,  an  inhabitant  of  Baltimore,  had  insured  his 
life  to  the  amount  of  $25,000.  He  was  last  seen  at  his  shop, 
near  Baltimore,  on  the  evening  of  February  2d,  1872,  in  com- 
pany with  W.  E.  Udderzook,  his  brother-in-law,  the  prisoner, 
and  a  young  man  living  near.  Shortly  after  the  two  had  left 
the  deceased  to  go  to  the  house  of  the  prisoner's  father,  the 
shop  was  discovered  to  be  on  fire.  After  it  had  burned  down, 
a  body  was  drawn  out  of  the  fire,  supposed  to  be  that  of  Goss. 
Claims  were  made  on  the  insurance  companies  which  the  pris- 
oner was  active  in  prosecuting.  On  the  30th  of  June,  1873, 
the  prisoner  and  a  stranger,  a  man  identified  as  A.  C.  Wilson,  ap- 
peared at  Jennerville,  in  Pennsylvania,  and  remained  over  night 

1  76  Pa.  St.  340. 


500  THE  FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

and  the  next  day.  On  the  evening  of  July  1st,  the  two  left 
the  town  together  in  a  buggy.  Next  day,  on  being  met  and 
asked  what  what  had  become  of  his  companion,  the  prisoner 
said  he  had  left  him  at  Parkesburg.  On  the  11th  July,  the 
body  of  a  man  identified  as  W.  S.  Goss  or  A.  C.  Wilson  was 
found  in  a  stretch  of  woods  about  ten  miles  from  Jennerville. 
The  head  and  trunk  were  buried  in  a  shallow  hole  in  one  place 
and  the  arms  and  legs  in  another.  The  stranger  who  was  with 
the  prisoner  at  Jennerville,  identified  as  A.  C.  Wilson,  was 
traced  from  place  to  place,  living  in  retirement  from  June  22, 
1872,  until  within  a  few  days  of  the  time  when  he  appeared 
with  the  prisoner  at  Jennerville.  During  the  interval  the 
prisoner  and  Wilson  were  seen  together  several  times  under 
circumstances  indicating  great  intimacy  and  privacy.  Wilson 
was  not  seen  or  heard  from  subsequent  to  the  time  when  he 
left  Jennerville  in  company  with  the  prisoner.  The  great 
question  in  the  case  was  the  identity  of  A.  C.  Wilson  and  W. 
S.  Goss.  This  was  established  by  a  variety  of  circumstances, 
leaving  no  doubt  that  Goss  and  Wilson  were  the  same  person, 
and  that  the  body  found  in  the  woods  was  that  of  Goss.  A 
photograph  of  Goss  taken  in  Baltimore  was  introduced  and 
presented  to  a  Avitness,  who,  so  far  as  he  knew,  had  never  seen 
Goss,  but  had  seen  a  man  named  Wilson,  and  was  declared  by 
him  to  be  the  photograph  of  Wilson.  There  were  letters  from 
Wilson,  identified  as  being  in  the  handwriting  of  Goss.  Wilson 
wore  a  peculiar  ring  which  belonged  to  Goss.  Wilson  had  at 
one  time  recognized  A.  C.  Wilson  as  his  brother.  Packages 
addressed  to  W.  S.  Goss,  and  envelopes  bearing  the  mark  of 
the  firm  with  which  Goss  had  been  employed,  came  and  went 
to  and  from  Baltimore.  There  was  also  evidence  that  Wilson 
and  Goss  were  both  in  the  habit  of  becoming  intoxicated. 
Other  circumstances  there  Avere  which  pointed  to  the  one  con- 
clusion. Altogether  the  facts  were  most  convincing,  and  left 
no  room  to  doubt  that  W.  S.  Goss  and  A.  C.  Wilson  were  one 
and  the  same  person.  This  being  established,  it  was  equally 
clear  that  Udderzook  had  done  away  with  his  accomplice  in 
the  fraud,  to  secure  to  himself  the  whole  proceeds  thereof,  and 
to  make  it  impossible  for  any  witness  to  jeopardize  the  posses- 
sion of  his  ill-gotten  gains.  Accordingly  the  prisoner  was  con- 
Ticted  and  suffered  the  full  penalty  of  the  law. 


TABLE   OF   CASES. 


Abernethy  v.  Com.  (101  Pa.  St.  332), 

55. 
Abbott,  Com.  v.,  338. 
Abbott,  People  y.,  82. 
Ackerson  v.  People  (124  lU.  563),  271. 
Ackley  v.  People  (9  Barb.  609),  270. 
Adams,  R.  v.,  90. 
Adams  v.  Field  (21  Ver.  256),  215. 
Adams  v.  State  (28  Fla.  511),  150. 
Adams  v.  State  (53  Ala.  379),  72, 141. 
^tna  Ins.  Co.  v.  Johnson  (11  Bush, 

587),  333. 
Ah  Chuey,  State  v.,  191,  354,  377. 
Ah  Chung,  People  v.,  481. 
Ah  Fook,  People  v.,  139. 
AhKi,  People  r.,  80. 
Ah  King,  State  v.,  303. 
Ah  Sing,  People  v.,  333. 
Aiken,  People  v.,  281,  382. 
Ala.  G.  S.  R.  Co.  v.  Hall  (17  So.  176), 

•     156. 
Albin  V.  State  (63  Ind.  598),  271. 
Alcorn,  R.  v.,  388. 
Aldridge.  R.  v.,  311. 
Alexander,  State  v.,  863. 
Algheri  v.  State  (25  Miss.  584),  303. 
AUbritton  v.  State  (94  Ala.  76),  277. 
Allen,  R.  v.,  298. 
Allen,  Stater.,  396. 
Allen,  U.  S.  v.,  261. 
Allen  V.  State  (16  Tex.  Cr.  App.  237), 

308. 
Allport  V.  Meek  (4  C.  &  P.  267),  215. 
Alphonse,  State  v.,  113. 
Alton  Lime  &  C.  Co.  v.  Calvay  (47 

111.  App.  343),  238. 
Alviso,  People  v.,  377. 
Amrick  v.  Mitchell  (1  Norris,  214), 

231. 
Anderson,  State  v.,  155,  160. 
Andersons.  State  (24  Fla.  139),  354. 
Anderson  v.  State  (2  West.  341),  133. 
Aneals  v.  People  (134  111.  401),  273, 

319. 
Angus,  R.  v.,  448. 
Annesley  v.  Earl  of  Anglesea  (17  St. 

Tr.  1416),  140. 
Annis,  Com  v.,  132. 
Antonio,  People  v.,  80,  95. 
Aram's  Case  (Eugene),  130. 
Arden,  R.  v.,  184. 


Ardesco  Oil  Co.  v.  Gilson  (63  Pa.  St. 

146),  163. 
Armor  v.  State  (8  Ala.  173),  263. 
Armstead's  Case  (1  City  Hall  Rec. 

174),  86. 
Armstrong,  People  v.,  301. 
Armstrong,  U.  S.  v.,  52. 
Armstrongs.  State (30  Fla.  170),  296. 
Arnold,  State  v.,  81. 
Arnold  v.  State  (23  Ind.  170),  326. 
Arthur,  Peoples.,  201. 
Arthur  v.  Arthur  (38  Kan.  691),  310. 
Arundel,  R.  v.,  354. 
Ashe,  Peoples.,  260,  328. 
Ash  ford  v.  Thornton  (4  B.  &  Aid. 

405),  290. 
Astlej'-  V.  Astley  (1  Hagg.  Ecc.  R. 

720),  350. 
Atwood,  R.  v..  459. 
Austin.  State  v.,  267. 
Austin  V.  State  (51  111.  236).  116. 
Austin  V.  State  (14  Ark.  555),  52,  116. 
Ayres  v.  State  (21  Tex.  Crim.  App. 

399),  80. 

Babb,  State  v.,  96. 

Babcock  v.  People  (13  Col.  515),  57. 

Bacon  v.  State  (22  Fla.  51),  263. 

Baden,  State  v.,  142. 

Bailey,  State  v.,  254. 

Baines,  R.  v.,  275. 

Baker,  State  v.,  67. 

Baker  v.  Haines  (6  Whart.  284),  219. 

Baker  v.  Mygatt  (14  la.  131),  217. 

Baker  v.  State  (53  N.  J.  L.  45),  260. 

Baldry,  R.  v.,  113,  116. 

Baldwin,  R.  v.,  345. 

Baldwin,  State  v.,  409. 

Ball,  R.  v.,  71. 

BaUard  v.  State  (19  Neb.  609),  113, 

160,  296. 
Ballentine  v.  White  (27  P.  F.  Smith, 

20),  231. 
Ballew  V.  State  (36  Tex.  98),  36. 
Banbury  Peerage  Case  (1  Sim.  &  S. 

153),  234. 
Bank  of  Pa.  v.  Jacob's  Adm.  (1  P.  & 

W.  161),  214. 
Bank  of  Washington  v.  Harrington 

(2  Penn.  27),  124. 
Banker  v.  People  (37  Mich.  4),  139. 

501 


502 


TABLE  OF  CASES. 


Banks,  R.  v.,  92. 

Banks,  State  v.,  233. 

Banks  v.  State  (73  Ala.  522),  806. 

Barnard,  R.  v.,  257. 

Baranelli,  R.  v.,  160. 

Barbour  v.  Com.  (9  Va.  L.  J.  309), 

193. 
Barfield  v.  Britt  (2  Jones'  L.  41,)  322. 
Barker,  State  v.,  103. 
Barnards   v.  State  (88    Tenn.    181), 

247. 
Barndt  v.  Frederick  (78  Wis.  1),  32. 
Barr  t'.  State  (10  Tex.  Cr.  App.  507), 

309,  333. 
Barrie,  People  v.,  113. 
Ban-on  v.  People  (73  III.  256),  132. 
Barrow,  State  v.,  216. 
Earth,  State  v.,  260. 
Bartlett,  R.  v.,  128.  412, 
Bartlett.  State  z\,  319. 
Bartley  v.  People  (156  III.  234),  114, 

115. 
Barton  v.  State  (18  Ohio,  221),  58. 
Barton  v.  Thompson  (46  la.  30),  341. 
Basye  v.  State  (63  N.  Y.  811),  113, 

252. 
Bate,  R.  v.,  206,  447, 
Bates  V.  Morris  (101  Ala.  282),  142. 
Bauer's  Case  (2  Chand.  Am.  Cr.  Tr. 

356),  276. 
Bean  v.  People  (124  111.  576),  241. 
Beards,  R.  v.,  204. 
Beasley,  State  v.,  275. 
Beatty,  State  v.,  82.  103. 
Beavers  v.  State  (58  Ind.  530),  129, 

193,  300,  377. 
Beck,  People  v.,  303,  336. 
Beck  V.  State  (44  Tex.  430),  90,  95, 

144. 
Becker  u.  Com.,  263. 
Beck  with,  People  v.,  365. 
Beebe,  States.,  259. 
Belaney's  Case,  323,  428. 
Bell,  Com.  v.,  62. 
Bell,  People  r\,  262,  295. 
Bell,  R.  r.,  51. 

Bell  V.  Brewster  (44  Ohio,  696),  221. 
Bell  V.  Com.  (88  Va.  365),  399,  409. 
Bell  V.  Norwood  (7  La.  95),  214. 
Belote's  Case  (36  Miss.  97),  79. 
Bemis,  People  t\,  37,  105. 
Bemis  v.  Rd.  Co.  (58  Vt.  636),  163. 
Bemmerly,  People  v.,  328. 
Benedict  r.  Flanigan  (18  S.  C.  508), 

221 
Benedict  v.  State  (14  Wis.  438),  54. 
Benjamin,  R.  v.,  256. 
Bennett,  People  v.,  301,  362,  365. 
Bennett  v.  State  (86  Ga.  401),  270. 
Bennett  v.  State  (30  Tex.  Cr.  App. 

341),  319. 
Benson,  People  v.,  243. 
Berckmans  v.  Berckmans  (17  N.  J. 

Eq.  453),  344,  348. 


Berg  V.  Peterson  (49  Minn.  420),  211, 

214. 
Bergen  v.  People  (17  111.  426),  118. 
Bernecker  v.  State  (40  Neb.  810),  265. 
Bernhart  v.  State  (82  Wis.  23),  261. 
Berry  v.  Com.  (10  Bush,  15),  123. 
Berryhill  v.   Kirchner  (96  Pa.    St. 

489),  221. 
Best,  State  tJ.,  394. 
Bestor  v.  Roberts  (58  Ala.  331),  216. 
Betsall,  State  v.,  459. 
Betts  V.  State  (66  Ga.  508),  98,  99. 
Bevan  v.  Atlanta  Nat'l  Bank,  217. 
Bickle,  R.  v.,  388. 
Bigelow,  Com.  v.,  71. 
Bill  V.  Com.  (88  Va.  365),  388. 
Billard  v.  State  (30  Tex.  267),  330. 
Bingham,  R.  v.,  224,  250. 
Binns  v.  State  (66  Md.  428),  302. 
Birch  V.  Ridgway  (1  F.  &  F.  270),  220. 
Bird  V.  State  (21  Grat.  800),  163 
Bishop,  R.  v.,  369. 
Bishop  V.  State  (43  Tex.  390),  310. 
Bishop  V.  State  (30  Ala.  34),  215,  216. 
Bissell  V.  West  (35  Ind.  54),  342. 
Bitter  v.  Saathoff  (98  111.  266),  322. 
Black  V.   State  (1  Tex.   Crim.   App. 

368),  281,  307. 
Black  V.  State  (18  Tex.  Crim.  App. 

124),  97,  309. 
Blaeser  v.  Mil.  Mech.  Mut.  Ins.  Co. 

(37  Wis.  31),  341. 
Blake,  People  v.,  334. 
Blake  v.  Blake  (70  111.  618),  348. 
Blandy,  R.  v.,  28,  147,  337. 
Blatch  V.  Archer  (Cowp.  65),  138. 
Bleasdale,  R.  v.,  59,  73. 
Blewett  V.  U.  S.  (10  Ct.  of  CI.  225), 

316. 
Blood,  Com.  v.,  63. 
Bloom,  State  v.,  262.  263. 
Blunt,  State  ??.,  272. 
Blunt,  Stater.,  330. 
Boardman  v.  Woodman  (47  N.   H. 

120),  164. 
Bodekee,  State  tn,  330. 
Bodine,  People  r.,  154,  270. 
Bolam,  R.  v.,  148. 
Bonin,  State  v.,  87. 
Bonsall  v.  Com.,  (20  Grat.  860),  319. 
Boober,  R.  v.,  249. 
Bookser  v.  State  (36  Tex.  Cr.  App. 

593),  311. 
Boorns'  Case,  363. 
Booth,  R.  v.,  171. 
Booth  V.  Com.  (4  Grat.  525),  52. 
BoswelFs  Case  (63  Ala.  303),  319. 
Bottomley  v.  U.  S.  (1  Story,  135),  63. 
Boulden  v.  State  (103  Ala.  78),  326, 

330. 
Bouldin  v.  State  (8  Tex.  Crim.  AjJii. 

332),  36,  198,  201. 
Bowditch,  R.  v.,  344. 
Bower  v.  State  (5  Mo.  364),  134. 


TABLE  OF  CASES. 


603 


Bowler  v.  State  (41  Miss,  570),  232, 

334. 
Bowman,  People  v. ,  262. 
Bowman,  R.  v.,  94. 
Bowman,  State  v.  (N.  Y.),  128. 
Bowman,  State  v.  (N.  C),  156. 
Bowman  v.  Sanborn  (5  Foster,  87), 

211. 
Boyd's  Adm.  v.  Wilson  (1  P.  &  W. 

211),  214. 
Boydr.  State  (2  Humph.  39),  113, 115. 
Boykin  v.  State  (34  Ark.  443),  83. 
Bradford,  Com.  v.,  68. 
Bradish  v.  Bliss  (35  Vt.  226),  341. 
Bradley,  State  v. ,  56. 
Bradley  v.  State  (31  Ind.  492),  324, 

329. 
Bradshaw  v.  State  (17  Neb.  147),  283. 
Brady  v.  Com.  (11  Bush,  282),  323. 
Bragg  V.  State  (17  Tex.  Crim.  App. 

219),  90. 
Brain,  R.  v.,  449. 
Brannon,  People  v.,  280,  333. 
Bray  v.  State  (41  Tex.  560),  328. 
Breedlove  v.  State  (26  Tex.  445),  41, 

43. 
Brennan,  R.  v.,  272,  277. 
Brennan  r.  People  (7  Hun,  171),  243. 
Bressler  v.  People  (117  111.  422),  333, 

465. 
Brewster,  State  v. ,  92. 
Briceland  v.  Com.   (74  Pa.  St.  463), 

150,  273,  317. 
Bridgman  v.  Corey  (62  Vt.  1),  222. 
Briggs  V.  Cooper,  342. 
Briggs  V.  Minneapolis  St.   Ry.  Co. 

(52  Minn.  36),  159. 
Brigham  v.  Peters  (1  Gray,  139),  213. 
Brindley,  R.  v.,  202. 
Brister  v.  State  (26  Ala.  107),  115, 

119. 
Britton,  R.  v.,  195. 
Britton,  U.  S.  v.,  338. 
Brockman,  State  v.,  116. 
Brodick  v.  Hunt  (43  Ind.  381),  218. 
Bromage  v.  Rice,  215,  219. 
Brontin,  U.  S.  v.,  261. 
Brook,  R.  v.,  183,  185. 
Brooks,  People  v.,  263. 
Brooks,  R.  v. ,  92. 
Brown's  Case  (9  Leigh,  332),  124. 
Brown,  State  v.  (la.),  115. 
Brown,  State  v.  (Mo.).  82. 
Brown  v.  Com.  (14  Bush,  398),  156. 
Brown  v.  Com.  (76  Pa.  St.  319),  98. 
Brown  v.  Shock  (77  Pa.  St.  471),  338. 
Brown  v.  State  (46  Ala.  175).  270. 
Brown  v.  State  (59  Ga.  456),  89. 
Brown  v.  State,  (88  Ga.  257),  388,  396, 

397,  410,  411. 
Brown  v.  State  (105  Ind.  385).  332. 
Brown  v.  State  (32  Miss.  433),  115. 
Brown  v.  State  (16  So.  202),  330. 
Brown  V.  State  (23  Tex.  195),  310. 


Brown  v.  State  (1  Tex.  Cr.  App.  154). 

326,  335,  354. 
Brownell  v.  People  (38  Mich.    732), 

269. 
Browning  v.  Gosnell  (59  N.  W.  340), 

226. 
Browning  v.  State  (33  Miss.  47),  332. 
Broylesr.  State  (47  Ind.  251),  120. 
Bruce,  State  v. ,  320. 
Bryan  v.  State  (74  Ga.  393),  107,  307. 
Bryant  v.  State  (16  Tex.  Crim.  App. 

144),  81,  310. 
Buchanan,  People  v.,  391. 
Buckley,  State  v.,  102. 
Buish,  R.  v.,  247. 
Bulla,  State  v.,  82. 
Bullard,  States.,  267. 
Bullock  V.   Wilson  (5  Porter,   388), 

153. 
Buntain  v.  State  (15  Tex.  Cr.  App. 

515),  309. 
BurdeU  v.  Taylor  (89  Cal.  613),  213. 
Burdett,  R.  v.,  18,  78,  140,  292,  293, 

352   355 
Bureny't'.  Torrey  (100  Ala.  157),  167. 
Burger  v.  State  (83  Ala.  36),  273. 
Burke,  R.  v. ,  369. 
Burns,  People  v.,  106. 
Burns,  People  v.,  116. 
Burns  v.  Barenfield  (84  Ind.  43),  156, 
Burr  V.  Harper  (Holt  N.  P.  421),  214. 
Burr  V.  Wilson  (22  Minn.  206),  343. 
Burt,  R.  v.,  268. 

Burt  V.  State  (16  So.  342),  30,  330. 
Burton,  R.  v.,  209,  358. 
Busby  I'.  State  (77  Ala.  66),  199. 
Bush.  Stater.,  281,  324. 
Butler,  R.  v.,  70. 
Butler  V.  St.  Louis  Life  Ins.  Co.  (45 

la.  93).  158,  159. 
Butler  V.  State  (19  S.  C.  57),  327. 
Butneau  v.  Hobbs  (35  Me.  227),  341. 
Butterfield,  State  v.,  82. 
Byrd  v.  State  (68  Ga.  661),  113. 
Byrne,  R.  v.,  183. 

Cady  V.  State  (44  Miss.  332),  116. 

Calder,  R.  t'.,  413. 

Calkins  v.  State  (14  Ohio  St.  222),  218. 

Camp  V.  Com.  (2  Met.  17),  160. 

Camp  V.  State  (3  Ga.  419),  243. 

Campbell,  State  v.,  56. 

Campbell  i'.  Rickards,  (5  B.  &  Ad. 

840),  154. 
Campbell  v.  State,  (23  Ala.  44),  76, 

200,  245,  463. 
Campbell  r.  State,  (55  Ala.  80),  128. 
Campbell  r.  Woodstock  Iron  Co.  (83 

Ala.  351),  211. 
Cancemi  v.  People  (16  N.   Y.        ), 

260. 
Cane,  R.  t".,  275. 

Cannon  "r.  State  (60  Ark.  504),  252. 
Cannine,  R.  v.,  244,  274. 


504 


TABLE  OF  CASES. 


Carey,  Com.  v.,  262. 

Carey  v.  State  (7  Humph.  199),  78. 

Carlton  v.  People  (150  111.  181),  295, 

300,  308,  345,  354. 
Carmalt  v.  Post  (8  Wright,  406),  183. 
Carpenter,  U.  S,  v.,  332. 
Carpenter  v.  Willey  (64  Vt.  212),  142. 
Carr  v.  State  (23  Neb.  749),  55,  331. 
Carroll,  R.v.,  51. 

Carroll  v.  Com.  (84  Pa.  St.  107),  466. 
Carroll  v.  State  (3  Humph.  315),  264. 
Carsewell,  R.  v.,  221. 
Carson,  State  v. ,  306. 
Carson  v.  State  (50  Ala.  134),  262. 
Carson  v.  State  (30  S.  W.  799),  336. 
Carter,  R.  v.,  73. 
Carter  v.  Boehm  (1  Sm.  L.  C.  9th  ed. 

791),  163. 
Carter  v.  People  (37  N.  E.  244),  42. 

Carter  v.  State  (36  Neb. ),  265. 

Carter  v.  State  (46  Ga.  637),  91. 
Carter  v.  State  (56  Ga.  463),  155. 
Carver  v.  Heskey  (79  Mo.  509),  53,  56. 
Cary  v.  Pitt,  212. 

Casey  v.  State  (20  Neb.  138),  302,  304. 
Cassidy,  U.  S.  v.,  300,  332. 
Castellon  v.  State  (15  Tex.  App.  551), 

85. 
Caster,  State  v.,  87,  88,  90. 
Cathcart  v.  Com.  (37  Pa.  St.  108),  109. 
Cauley  v.  State  (92  Ala.  71),  264. 
Cavender  v.  State  (126  Ind.  47),  302. 
Chaffee  v.  Taylor  (3  Allen,  598),  212- 
Chambers,  People  v. ,  80. 
Chambers,  State  v.,  179. 
Chase  v.  People  (40  111.  352),  319. 
Chee  Gong,  State  v.,  272,  295. 
Chester  v.  State  (23  Tex.  Crim.  App. 

577},  217. 
Cheverins  v.  Com.   (8  Cr.  L.  Mag. 

760),  41,  42,  43,  109,  461,  481. 
Cheverton,  R.  v.,  370,  373,  374. 
Chicago,  M.  &  St.  P.  Co.  v.  Kendall 

(49  III.  App.  398),  163. 
Chicago,   etc.,   R.   Co.    v.  Lambert 

(119  m.  256).  164. 
Chick  V.  State,  (40  Ind.  263),  270. 
Child,  Stater.,  318. 
Ching  Ling,  State  v.,  331. 
Chisholm  v.  State  (45  Ala.  66),  298, 

307. 
Chitister  v.  State  (28  Ga.  683),  336. 
Choate,  Com.  v.,  63. 
Christensen,  People  v.,  325. 
Cicely  v.  State  (13  Sm.  &  M.  211), 

332 
Cicero  v.  State  (54  Ga.  156),  185. 
Clapp  V.  Clapp  (97  Mass.  531),  349. 
Clare  v.  People  (9  Col.  122),  466. 
Clare    v.    State  (26  Tex.    Cr.   App. 

624),  309. 
Clark,  People  v.,  75, 
Clark,  R.  v.,  110. 
Clark,  State  r;.,  218, 


Clark  V.  Cassidy  (62  Ga.  407),  322. 
Clark  V.  Com.  fl23  Pa.  555),  330. 
Clark  V.  State  (12  Ohio,  483),  336. 
Clark  V.  State  (28  Tex.   App.  594), 

199. 
Clark  V.  Wyatt  (15  Ind.  271),  216. 
Claw  son,  State  r.,  62. 
Clay,  R.  v.,  243. 
Clayton,  State  u,  326. 
Clayton  v.  State  (15  Tex.  Cr.  App. 

348),  298. 
Cleary,  Com.,  v.,  262. 
Clements,  People  v.,  262. 
Clements,  State  v.,  296. 
Clewe,  R.  v.,  67,  123,375. 
Clinch,  R.  v.,  181. 
Clinton,  State  v.,  215. 
Clough  V.  State  (7  Neb.  320),  47,  199. 
Clouser,  Stater.,  300. 
Clunnes  v.  Pezzey  (1  Camp.  8),  140. 
Cobb,  Com.  v.,  302. 
Cochran,  People  v.,  96. 
Cochran,  R.  v.,  124,  292,  474. 
Cochran  v.  U.  S.  (157  U.  S.  286),  336. 
Coffee  V.   State  (1  Tex.  App.  548), 

259. 
Coffin's  Case  (4  City  Hall  Rec.  52), 

213. 
Coffman,  People  v.,  319. 
Coggeshall  v.   U.   S.  (2  Wall.  383), 

463. 
Cogle    V.   Com.    (100    Pa.    St.   573), 

296. 
Cohen  v.    State  (50  Ala.  108),    328, 

331 
Cohen  v.  Teller  (93  Pa.  St.  123),  219. 
Coke,  R.  v.,  51,  69,  250. 
Cole,  R.  r.,266. 
Cole,  State  v.,  44. 
Cole,  Stater.,  156,  163. 
Cole,  U.  S.  v.,  29. 
Cole  V.  Lake  Shore  &  M.  S.  Ry.  Co. 

(95  Mich.  77),  139. 
Cole  V.  State,  (59  Miss.  484),  263. 
Coleman,  R.  v.,  127,  135,  180. 
Coleman,  State  v. ,  306. 
Coleman,  State  v.,  158,  332. 
Coleman   v.    People  (58  N.  Y.  555), 

70 
Coleman  v.  State  (26  Fla.  61),  277. 
Coleman  v.  State  (87  Ala.  14),  298. 
Coleman  v.  State  (44  Tex.  109),  460. 
Coleman  v.  State  (59  Miss.  484),  263. 
Collier,  Com.  v.,  155. 
CoHier,  R.  v.,  255. 
Collins,  Stater.,  277. 
Collins  r.  People  (98  111.  584),  460. 
Comfort  r.  People  (54  111.  404),  82. 
Com.  r.  Abbott  (130  Mass.  472),  338. 
Com.  r.  Annis  (15  Gray,  197),  132. 
Com.  r.  Bell  (36  W.  N.  C.  146),  62. 
Com.  V.  Bigelow  (8  Met.  235).  71 . 
Com.  V.  Blood  (2  N.  Ene:.  393),  63. 
Com,  V,  Bradford  (126  Mass,  42),  68. 


TABLE  OF  CASES. 


505 


Com.  V.  Carey  (3  Pick.  47),  213. 
Com.  V.  Carey  (2  Brewst.  404),  262. 
Com.  V.  Choate  (105  Mass.  451),  63. 
Com.  V.  Cleary  (135  Pa.),  262. 
Com.  V.  Cobb  (14  Gray,  57),  302. 
Com.  V.  Collier  (134  Mass.  203),  155. 
Com.  V.  Costley  (118  Mass.  1),  308. 
Com.  V.   Cullen   (36  Leg.  Int.   252), 

41,  322,  478. 
Com.    V.  Cunningham    (104    Mass. 

545),  324. 
Com.  V.  Drum  (58  Pa.  St.  9),  326. 
Com.  V.  Eastman  (1  Cush.  189),  63, 

219. 
Com.  V.  Ferrigan  (8  Wright,  386),  67. 
Com.  V.  Griffin  (4  Allen,  310),  106, 

131. 
Com.  V.  Hardy,  (2  Mass.  317),  261. 
Com.   V.  Harman  (4    Pa.   269),   30, 

329,  330. 
Com.  V.  Hawkins  (3  Gray,  463),  52. 
Com.  V.  Hobbs  (140  Mass.  443),  397. 
Com.  V.  Jackson  (133  Mass.  16),  59. 
Com.  V.  Kimball  (24  Pick.  366),  233. 
Com.  V.  Knapp  (9  Pick.  496),  113. 
Com.  V.  Leach  (156  Mass.  99),  186. 
Com.    V.  Leonard    (140  Mass.    473), 

262. 
Com.  V.  Locke  (5  N.  Eng.  498j,  129. 
Com.  V.  McCarthy  (119  Mass.  354), 

68. 
Com.  V.  McKee  (Add.  33),  214. 
Com.    V.   McKie  (1   Gray,  61),  292, 

298 
Com.  v'.  McMahon  (145  Pa.  St.  413), 

131,185,277. 
Com.    V.  Merriman  (14  Pick.  518), 

62. 
Com.  V.  Meyers  (160  Mass.  530),  114. 
Com.  V.  Miller  (139  Pa.  77).  327. 
Com.   V.   Mitchell    (117   Mass.    431), 

113. 
Com.  V.  Montgomery  (11  Met.   534), 

103. 
Com.  V.  Morgan  (107  Mass.  199),  268. 
Com.  V.  Mullen  (150  Mass.  394),  265. 
Com.  V.  O'Brien  (119  Mass.  342),  269. 
Com.  V.  0'Connel(12  Allen,  451).  95. 
Com.  V.  Pitsinger  (110  Mass.   101), 

122. 
Com.  V.  Regan  (105  Mass.  193).  243. 
Com.  V.  Robinson  (5  N.  Eng.  217),  62, 

63,  396,  414. 
Com.  V.  Robinson  (Thach.  Cr.  Cas. 

230),  261. 
Com.  V.  Sackett  (22  Pick.  394).  270. 
Com.  V.   Scott  (123  Mass.  222),  63, 

187,  459. 
Com.  V.  Sego  (125  Mass.  210),  116. 
Com.  V.  Sheenan  (163  Mass.  170),  114. 
Com.  V.  Shepard  (1  Allen,  575),  64. 
Com.  V.  Smith  (6  S.  &  R.  571),  214. 
Com.  V.  Smith  (21  Grat.  809),  373. 
Com,  V.  Stine  (4  Met.  43),  71, 


Com.  r.  Terrigan(8  Wright,  386).  62, 
Com.  V.  ToUier  (119  Mass.  312),  130. 
Com.  V.  Trecv  (8  Cush.  1),  291. 
Com.  V.  Tuckeman  (10  Gray,  173), 

64. 
Com.  V.  Twitchell  (1  Brewst.  563), 

265,  479. 
Com.  V.  Webster  (5  Cush.  293),  234, 

281,  303,  336,  374. 
Com.  V.  White  (145  Mass.  392),  71. 
Com.  V.  Williams  (1  Mass.  6),  97. 
Com.  V.  Willard  (105  IMass.  62),  106, 

185. 
Com.  V.  Vv^ilson  (1  Gray,  337),  164. 
Com.  V.  Worcester  (3  Pick.  462),  264. 
Concord  Rd.  v.  Greeley  (67  Cal.  315), 

155. 
Conger  v.  Conger  (83  N,  Y.  603),  344. 
Connaghan  v.  People  (88  111.   460), 

332. 
Connecticut  Mutual  Life  Ins.  Co.  v. 

Bathrop  (111  U.  S.  472),  155. 
Conner  v.  Stanley  (67  Cal.  315),  155. 
Conner  v.  State  (6  Tex.  Crim.  App, 

455),  86. 
Conners  v.  People   (50  N.   Y.  240), 

268. 
Connor,  R.  v.,  471. 
Connor  v.  State  (34  Tex.  659),  324. 
Coni'oy,  People  v.,  52. 
Cook,  R.  v.,  147,  376. 
Cook,  Stater.,  384. 
Cook  V.  State  (4  Zab.  843),  155. 
Cooke  v.  Cooke  (152  111.  286),  31,  347, 

350. 
Cooper,  R.  i\,  90. 

Cooper  V.  Slade  (6  E.  &  B.  447),  322. 
Cooper  r.  State  (53  Miss.  398),  155. 
Cooper  V.   State  (88  Ala.   107),  197, 

325. 
Cooper  V.  State   (16  Tex.  Cr.  App. 

341),  309. 
Cooper  V.  State  (29  Tex.  Crim.  App. 

8),  81. 
Cooper  V.  State  (19  Tex.  449),  36. 
Coots,  R.  v.,  98. 
Coppard.  R.  v.,  250. 
Copperman  v.  People  (56  N.  Y.  591), 

96. 
Cordelli,  State  v.,  354,  360. 
Corder,  R.  v..  383. 
Cork  V.  Field  (3  Esp.  133),  340. 
Cornwallis's  Case.  837. 
Costello  V.  Crowell  (133  Mass.  352), 

219. 
Costley,  Com.  v.,  308. 
Cotton,  R.  v.,  68,  413. 
Couch,  R.  v.,  211. 
Counts  V.  State  (19  Tex.  Cr.   App. 

450),  309. 
Courtnage,  R.  v.,  188,  257. 
Courvoisier,  R.  i\,  186,  495. 
Cousins,  State  ii. ,  142. 
Covender  v.  State  (126  Ind.  47),  264. 


606 


TABLE  OF  CASES. 


Coverous  v.  Jones  (61  N.  H.  653),  54. 

Covington,  State,  v.,  122. 

Coward  v.  State  (16  Tex.  Crim.  App. 

59),  42. 
Cowper,  R.  v.,  379,  380. 
Cowper  V,  French,  146. 
Cox,  People  r.,  330,  331. 
Coxwell  V.  State  (66  Ga.  309),  261. 
Coyle,  R.  v. ,  244. 
Crabtree,  State  v.,  55. 
Craig,  U.  S.  v.,  214. 
Craig  V.  Noblesville  &  Stoney  Creek 

G.  R.  Co.  (98  Ind.  109),  156. 
Craine,  People  v.,  306. 
Cramer,  State  v.,  191. 
Cranch  v.  State  (12  S.  W.  490),  281. 
Crank,  State  v.,  87. 
Crapo,  People  v. ,  268. 
Crass  V.  State  (30  Tex.  App.  480),  68. 
Crawford,  States.,  320. 
Crawford,  State  v.,  324,  826. 
Crawford  v.  State  (4  Cold.  190),  122. 
Creson,  States.,  80,  265. 
Creswell  v.  Jack  (2  F.  &  F.  24),  220. 
Crickmer,  R.  v.,  60. 
Crilly  V.  State  (20  Wis.  231),  324. 
Crisp  V.  Walpole  (2  Hagg.  521),  227. 
Cronin,  People  v.,  478. 
Cronkwright  v.  People  (35  111.  204), 

82. 
Crossfield,  R.  v.,  54,  130,  142,  247. 
Crossley,  R.  v.,  337. 
Crowhurst,  R.  v.,  85. 
Crowley  v.  State  (26  Tex.  Cr.  App. 

578),  309. 
Crowninshield  v.  Crowninshield  (2 

Gray,  524),  291. 
Crumes  v.  State  (28  Tex,  Crim.  App. 

516),  199. 
Crump,  R.  v.,  188. 
Crutchley,  R.  v.,  449. 
Cruttenden,  R.  v.,  90. 
Crymble  v.   Crymble  (50   111.    App. 

544),  349. 
Ciilbertson  v.  Hill  (87  Mo.  553),  53. 
Cullen,  Com.  v.,  41,  322,  478. 
Cummins  v.  People  (42  Mich.   142), 

132. 
Cunningham,  Com.  v.,  324. 
Cunningham,  State  v.,  241. 
Cunningham  v.  State  (56  Miss.  269), 

321. 
Cunningham  v.  State  (20  Tex.  Cr. 

App.  162),  310. 
Curtis  V.  State  (6  Cold.  9),  89. 
Cutbush  V.  Gilbert  (4  S.  &  R.  551), 

297. 

D'Arwin  v.  State  (71  Ala.  352),  267. 
Dacey  v.  People  (116  Ind.  556),  320. 
Dailey  v.  Dailey  (Wright,  514),  344, 

350. 
Dain  v.  State  (74  Ala.  38),  324. 
Pale  V.  Johnson  (50  N.  H.  452),  163. 


Dalstonu.  Cotsworth  (1  P.  Wms.  731), 

140. 
Dalton  Case,  302. 
Dalton.  State  v.,  263,  265. 
Daly,  State  v.,  300. 
Daniel  v.  State  (65  Ga.  199),  87. 
Daniels  v.  Musher  (2  Mich.  183),  156. 
Daniels  v.  State  (14  S.  W.  395),  509. 
Davenport,  State  v.,  302. 
Davidson,  R.  v.,  259,  265,  451. 
Davidson,  State  v.,  246,  361. 
Davis,  People  v.  (Cal.),  122. 
Davis,  People  v.  (Cal.),  307. 
Davis,  People  v.  (N.  Y.),  326. 
Davis,  State  v.  (Mo.),  103. 
Davis,  State  v.  (Mo.),  75. 
Davis  V.  People  (114  111.  98),  333. 
Dawson  v.  State  (62  Miss.  241),  272. 
Dawtrey,  R.  v.,  108. 
Day  V.  Day,  184. 
Day  V.  State  (63  Ga.  667),  199. 
Dayly,  States.,  262. 
De  la  Motte,  R.  v.,  140,  214. 
De  Graflf,  People  vi,  153. 
De  Ranee,  State  v.,  295. 
Deal  V.  State  (39  N.  E.  930),  185. 
Dean,  R.  v.,  243. 
Dean  v.  Com.  (32  Grat.  912),  34,  41, 

42,  108,  189,  274,  461,  466,  479. 
Debbs  V.  State  (43  Tex.  650),  154. 
Debley,  R.  v.,  85. 
Deitz  V.  Fourth  Nat'I  Bank  (69  Mich. 

287),  218. 
Dejarnette  v.  Com.  (75  Va.  867),  156, 

161. 
Delahaunt,  R.  v.,  244. 
Delaney.  R.  v.,  133. 
De  los  Santos  v.  State  (26  S.  W.  831), 

336. 
Demerritt  v.  Randall  (116  Mass.  331), 

218. 
Despard,  R.  v.,  294. 
Devere  v.  State  (5  Ohio  C.  C.  509),  71. 
Devoto  V.  Cora.(3  Met.— Ky .— 417),72. 
Dewhirst,  R.  v.,  89. 
Dick,  People  v.,  301. 
Dick  V.  State  (30  Miss.  593),  116,  459. 
Dick  V.  State  (87  Ala.  61),  237,  281, 

326. 
Dickenson  v.  Fitchburg  (13  Gray, 

546),  163. 
Dickson,  State  v.,  54,  147,  183,  354. 
Dill,  State  v.,  49,  331,  332,  333. 
Dillon  V.  People  (1  Hun,  679),  80, 101, 

209. 
Dimmitt,  State  v..  277. 
Dimmitt  v.  State  (55  N.  W.  531),  97. 
Dineen,  State  v.,  328. 
Dixon,  R.  v.,  50. 
Dixon  V.  State  (15  Tex,  Cr.  App.  480), 

298. 
Dobbs  V.  Justice  (17  Ga.  624),  236. 
Dockstader,  State  t'. ,  270. 
Dodge  V.  Bacbe  (57  Pa.  St.  421),  183. 


TABLE  OF  CASES. 


507 


Doe  d.  Brainbridge  v.  Brainbridge, 

158. 
Doe  d.  Fleming  v.  Fleming  (4  Bing. 

266),  234. 
Doe  d.  Jenkins  v.  Davis  (10  Q.  B.  314), 

215. 
Doe  d.  Mudd  v.  Suckermore  (5  Ad. 

&  E.  214),  216. 
Doe  d.  Perry  v.  Newton  (5  A.  &  E. 

514),  215,  219. 
Doe  V.  Tearford  (3  B.  &  Ad.  897),  327. 
Doe  V.  Traver  (Ry.  &  Moo.  N.  P.  C. 

141),  215. 
Doe  V.  Wallinger  (Mann.  Index.  131), 

212. 
Doggett,  People  v. ,  262. 
Dolly  V.  Morrid  (10  Hun,  201),  159. 
Dolz  V.  Morris  (201  Mo.  45),  161. 
Donahoe,  State  v.,  281. 
Donnall,  R.  v.,  146,  389,410. 
Donnell,  R.  v.,  134,  142,  148,  248. 
Donnellan,  R.  v.,  142,  146,  148,  389, 

410,  416. 
Donnelly  v.  State  (26  N.  J.  L.  601), 

127,  332,  336. 
Donoghoe  v.  People  (6  Park.  Cr.  R. 

120),  270. 
Donohoe,  State  ?'.,  265. 
Donovan,  State  v.,  263. 
Donovan,  State  v.,  86. 
Dorsett,  R.  v.,  64,  413. 
Dorsey  v.  State  (1  Tex.  Crim.  App. 

33),  243. 
Dougherty's  Case  (3  City  Hall  Rec. 

148),  72. 
Douglas  Peerage  Case    (2   Pothier, 

337),  144. 
Douglas  V.  Mitchell  (35  Pa.  St.  440), 

280. 
Douglass,  States.,  263. 
Dove  V.  State  (3  Heisk.  348),  319. 
Dowling  V.  State  (5  Sm.  &  M.  664), 

265. 
Downing,  R.  v.,  251,  283,  284,  472. 
Doyle  V.  State  (5  Tex.  Cr.  App.  442), 

319 
Drage,  R.  r.,  73. 
Dredge,  R.  v.,  358. 
Dreesen  v.  State  (38  Neb,  375),  302, 

381. 
Drew  V.  Prior  (5  M.  &  Gr.  264),  213. 
Drory,  R.  v.,  256. 
Drum,  Com.  v.,  326. 
Drvman  v.  State  (102  Ala.  130),  270. 
Duffin,  R.  v.,  51. 

Duncan  v.  State  (22  S.  E.  324),  317. 
Dunha.Tn  v.  Dunham  (6  L.  R.  141), 

348. 
Dunn,  R.  v.,  73. 

Dunn  V.  People  (109  111.  635),  332. 
Dupree  v.  State  (33  Ala.  380),  251,  269. 
Durant  v.  People  (13  Mich,  351),  80. 
Durett  V.  State  (72  Ala,  404),  47,  52. 
Durham,  R.  v.,  459. 


Dursley,  R.  v.,  95. 

Dyce  Somber's  Case  (1  M'N.  &  G. 

128),  166. 
Dyer,  R.  v.,  95. 

Ex  parte  Humphrey  (19  L.  J.  M.  C), 

471. 
Eagleton  v.  Kingston  (8  Ves.  437), 

222. 
Earle  v.  People  (73  111.  329),  280,  459. 
Earles  v.  Pickens  (5  C  &  P.  542),  118. 
Early  v.  State  (9  Tex.   Crim.    App, 

476) ,  282,  375. 
Earp  V.  State  (55  Ga.  136),  115. 
Eastman,  Com.  v.,  63,  219. 
Eastwood,  People  v.,  56. 
Eberhardt  v.  State  (47  Ga.  598),  112, 

118. 
Echols  V.  State  (81  Ga.  696),  104,  314, 
Eckert  v.  State  (9  Tex.  Crim.  App. 

105),  112,  113,  309. 
Eckman,  People  v.,  306, 
Edge,  R.V.,  299,  370. 
Edwards,  State  v.,  260. 
Edwards,  State  v.,  87. 
Egan  V.  Cowan  (2  Irish  Jurist,  N.  S., 

394)    219. 
Eiland  v.  State  (52  Ala.  322),  122. 
Elder,  R.  v.,  389. 
Eldridge,  R.  v.,  317. 
Elizabeth  v.    State  (27  Tex.   Crim. 

App.  329),  249. 
Elliott  V.  Van  Buren  (33  Mich.  49), 

341. 
Ellis,  R.  v.,  64,  95. 
Ellis  V.  Buzzell  (60  Me.  209),  342, 
EUwood,  State  v.,  131,  184. 
Elmore  v.  State  (96  Ala.  12),  138, 137. 
Elsham,  State  v.,  327. 
Elster,  People  v.,  81,  85,  126. 
Emory,  State  v.,  263,  265. 
Engleman  v.  State  (2  Ind.  91),  267. 
En,  Stater.,  81,  85. 
Enoch,  R.  v.,  449. 
Eskridge  v.  State  (25  Ala.  30),  113. 
Ettinger  v.  Com.  (98  Pa.  St.  338),  112, 

128. 
Eubanks  v.  State  (82  Ga.  62),  86, 
Eugene  Aram's  Case,  130. 
Evans,  People  v. ,  270. 
Evans,  State  v.,  252. 
Evans  iK  Evans,  360. 
Evening  News.  People  v.,  822. 
Every's  Case,  467. 
Exall,  R.v.,  303,  465,  466. 
Ezekiel,  Stater.,  221. 
Ezell  V.  State  (15  So.  818),  192. 

Fairchild,  People  v.,  332. 

Fairchild  r,  Bascomb  (35  Vt.  398), 

158. 
Fairlamb.  State  v.,  133. 
Fanning  v.  State  (14  Mo.  386),  133. 
Farler,  R.  v.,  459, 


508 


TABLE  OF  CASES. 


Farmers'  Bk.  v.  Whitehill  (10  S.  & 

R.  110),  314. 
Farmers'   Ins.    Co.    v.   Garrett    (42 

Mich.  289),  46. 
Farrington,  R.  v.,  50. 
Faulk  V.  State  (52  Ala.  415),  306. 
Faulkner,  R.  v.,  117 
Faulkner    v.   State  (15  Tex.   Crim. 

App.  115),  78,  83,  309. 
Faulkner  v.  Terr.  (30  Pac.  905),  321. 
Fee  V.  Taylor  (83  Ky.  259),  217. 
Felix  V.  State  (18  Ala.  720),  260,  262. 
Felter,  Stater.,  156. 
Fennill,  Stater.,  116. 
Fenning,  R.  v.,  251,  387. 
Ferguson,  People  v.,  100,  208. 
Ferguson,  R.  v.,  447. 
Ferguson  v.  Hubbell  (97  N.  Y.  507), 

153,  166. 
Ferris,  R.  v.,  49. 
Ferris,  State  v.,  191. 
Ferrigan,  Com.  v.,  67. 
Field  V.  State,  91. 
Fields,  in  Resp.  Peck.,  140,  126. 
Fields  V.  State  (47  Ala.  603),  262. 
Fife  V.  Com.  (30  Pa.  St.  429),  116, 

329. 
Finch  V.  State  (1  So.  565),  125. 
Findley  v.  State  (5  Blackf.  576),  301. 
Finlan  v.  State  (13  S.  W.  866),  311. 
Finley,  People  v.,  321. 
Finn  v.  Com.  (5  Rand.  701),  123. 
Fisher,  R.  v.,  117. 
Fisher  v.  People  (23  111.  283),  319. 
Fitter,  R.  v.,  148,  256. 
Fitzgerald,  State  v.,  330. 
Flagg  V.  People  (40  Mich.  706),  113. 
Flanagan,  State  v.,  303. 
Fletcher  v.  State  (90  Ga.  468),  97, 

335. 
Fletcher  v.  State  (49  Ind.  124),  263. 
Flowers  v.   Fletcher  (20  S.  E.  870), 

212. 
Flynn,  People  ??.,  241. 
Foley,  Peoples.,  301. 
Folkes  V.  Chad  (4  T.  R.  498),  153. 
Folsom,  R.  I'.,  185. 
Folsom  V.  Brown  (25  N.  H.  114),  342. 
Folwell,  State  v.,  60,  346. 
Fong  Ah  Sing,  People  v.,  317. 
Foo  Ching,  People  v.,  268. 
Forbes  v.  Carothers  (3  Y.  527),  153. 
Ford,  State  v.,  56. 
Ford,  Stater.,  325. 
Ford  V.  State  (71  Ala.  385),  319,  320. 
Forgey  v.  First  Nat'l  Bank  (66  Ind. 

123),  218. 
Forshner,  State  v. ,  243. 
Fortner,  State  v.,  113. 
Foster's  Will  (34  Mich.  21),  218. 
Foster  R  r    72 
Foster'r.  State  (4  Tex.  Cr.  App.  246), 

278. 
Foster  v.  State  (52  Miss.  695),  82. 


Foulke,  U.  S.  v.,  380. 

Fowler,  People  v. ,  62. 

Fox  V.  Lambson  (2  Halst.  275),  124. 

Frances,  R.  v.,  157. 

Francis,  R.  v.,  70. 

Frank,  State  v.,  307. 

Franklin  v.  State  (31  S.  W.  643),  336. 

Eraser,  R.  v.,  273. 

Eraser  v.  State  (55  Ga.  325),  41,  42. 

Frasier,  People  v.,  97. 

Freeland's  Case  (1  City  Hall  Rec.  82), 

261,  263. 
Freeman,  R.  v.,  257. 
Freeman,  State  v.,  113. 
Freeman,  U.  S.  v.,  261. 
Freeman  v.  Brewster  (93  Ga.  648), 

212. 
Freeman  v.  Freeman  (31  Wis.  235), 

344,  848. 
Freese  v.  State  (21  S.  W.  189),  131. 
Frey  v.  Com.  (7  Crim.  L.  Mag.  72), 

454. 
Fritz,  Stater.,  216. 
Frost,  R.  v..  247,  259,  294. 
Fuhrman,  People  v.,  295. 
Fuller,  R.  v.,  72,  74,  97. 
Furlong,  State  v.,  78,  209. 
Fussell  r.  State  (93  Ga.  450),  124. 

Gablick  r.  People  (40  Mich.  292),  88, 

91. 
Gabrielsky  r.  State  (13  Tex.  Cr.  App. 

428),  297. 
Gaines  r.  Com.  (14  Wright,  319),  194. 
Galbrant's  Case  (1    City  Hall  Rec. 

109),  74. 
Gallagher  r.  State   (28  Tex.   Crim. 

App.  247),  281,  311. 
Gallaher  r.  State  (20  Tex.  Cr.  App. 

247),  318. 
Gandolof  v.  State  (11  Ohio  St.  114), 

264. 
Gammon  v.  Ruffin  (151  Mass.  204), 

322. 
Gannon  r.  People,  332. 
Gannon  r.  Stevens  (13  Kan.  447),  37. 
Garbutt,  People  r.,  261. 
Garcia  r.  State  (16  So.  223),  295. 
Gardelle,  R.  r.,  147. 
Gardner,  People  r. ,  74,  270. 
Gardner,  State  r.,  118. 
Garetz  r.  People  (107  111.  162),  295. 
Garner,  R.  v.,  116,  418. 
Garner  v.  State  (28  Fla.  113),  253. 
Garrallr.  Alexander  (4  Esp.  37),  211. 
Garrett,  State  v.,  149. 
Garrett  r.  State  (97  Ala.  18),    267, 

300. 
Gass,  Stater.,  381,  306. 
Gassaway,  People  v.,  80. 
Gay,  Stater.,  313. 
Gay  V.  Gillelan  (93  Mo.  350),  543. 
Gedicke,  State  v.,  164. 
Geering,  R.  v.,  67,  413. 


TABLE  OF  CASES, 


509 


Gentry  v.  McMinnis  (3  Dana,  382), 

153. 
Genze,  R.  v.,  473. 

George  v.  Surrej'  (M.  &  M.  516),  211. 
German,  State  v.,  117. 
Getty,  People  v.,  102. 
Gibbs,  State  v. ,  335. 
Gibson,  People  v.,  192. 
Gibson  v.  Tiowbridge  Furniture  Co. 

(96  Ala.  357),  212,  216. 
Gilabert,  People  r.,  122. 
Gilbert,  U.  S.  v.,  29,  297,  366. 
Giles  V.  State  (6  Ga.  276),  303,  326, 

337. 
Gill,  R.  v.,  110,  111. 
Gill  V.  State  (59  Ark.  422),  300. 
Gills  V.  Brown  (9  C.  &  P.  601),  156. 
Ginger,  State  v.,  160. 
Girard  Coal  Co.  v.  Wiggins  (52  111. 

App.  69),  161. 
Gleason,  People  v.,  263. 
Glenn   R.  v.   211. 
Goersen  v.   Com!  (106  Pa.  St.  477), 

395,  414. 
Goeus  V.  State  (Tex.  Crim.  App.  31 

S.  W.  656),  84. 
Goldsmith  v.  State  (16  So.  933),  260. 
Goldsmith  v.  State  (32  Tex.   Crim. 

App.  112),  200. 
Gooch,  State  v.,  41. 
Good,  R.  v.,  147,  374. 
Goodwin  v.  State  (96  Ind.  550),  56, 

161. 
Gordon,  People  v.,  79, 
Gordon  v.  Parmelee  (15  Gray,  413), 

343. 
Gordon  v.  People  (33  N.  Y.  508),  14 
Gordon  v.  State  (3  la.  410),  267. 
Gordon  v.  State  (33  N.  Y.  501),  108, 
Gorham,  State  v.,  114,  115,  124. 
Gould.  R.  v.,  206. 
Gowgill,  People  v.,  263. 
Graham,  R.  v.,  401,415. 
Graham,  State  v.,  102. 
Graham,  State  v..  199. 
Graham  v.  Com.  (16  B.  Mon.  587), 

295,  319. 
Graham  v.  Graham  (50  N.  J.  701), 

351. 
Graham  v.  Nesmith  (24  S.  C.   296), 

221. 
Graham  v.  State  (29  Tex.  App.   31) 

270. 
Grand  Id,  Bk,  Co.  v.  Shoemaker  (31 

Neb.  124),  215. 
Grant,  R.  v. ,  46. 
Grant,  State  v. ,  56. 
Grant,  Stater.,  113. 
Grant  v.  State  (66  Ala.  201),  113. 
Grant  v.  State  (11  So.  915),  466. 
Gravely  v.  State  (38  Neb.  871),  319. 
Graves  v.  People  (18  Col.  170),  387, 

409,  466. 
Graves  v.  State  (12  Wis.  591),  80. 


Gray,  R,  v.,  65. 

Gray,  State  v.,  82,  87, 

Gray  v.  Com.  (101  Pa.  St.  380),  117, 

367,  375,  378. 
Grear,  State  v.,  117,  295. 
Grebe,  State  r..  141.  197. 
Greens  Case  (14  St.Tr.  1369),  135,  363, 
Green,  People  v.,  127, 
Green,  R.  v.,  71. 
Green  v.  State  (69  Ala.  6),  252. 
Green  v.  State  (17  Fla.  667),  195. 
Green  v.  State  (13  Mo.  382),  124. 
Green  v.  State  (12  Tex.  Crim.  App. 

51),  105. 
Greenacre,  R.  r.,  147,  471. 
Greene   v.    Cromwell   (1    City  Hall 

Rec.  11),  259. 
Greenfield  v.  People  (9  \^a.  L.  J.  309), 

192. 
Greenfield  v.  People  (85  N.  Y.  75), 

127,  133,  137,  193. 
Greenleaf  v.   Goodrich   (101    U.  S. 

278),  155. 
Greenslade,  R.  v.,  472. 
Greenwade  v.  Com.  (12  S.  W.  131), 

117. 
Greenwall,  People  v. ,  264. 
Gregg  V.  State  (17  So.  321),  336. 
Gregory   v.    Richards   (3    Jones'  L. 

410),  88,  95. 
Gregory  v.  State  (80  Geo.  603),  187, 

200. 
Grielig  v.  People  (66  Ind.  94),  320. 
Griffin,  Com.  v.,  106,  131. 
Griffin,  State  v.,  131. 
Griffin  v.  State  (14  Ohio  St.  55),  268. 
Griffith  V.  State  (90  Ala.  583),  270. 
Griffiths  V.  Ivery  (11  A.  &  E.  222), 

^15 
Griffith's  V.  WilUams  (1  Cr.  &  J.  47), 

215. 
Griggs  V.  State  (59  Ga.  738),  197. 
Grimes  v.  Bowerman  (92  Mich.  458), 

31, 
Griswold  v.  State  (24  Wis.  144),  124. 
Gronnall,  R.  v.,  451. 
Grout,  Stater.,  113. 
Guajardo    v.   State  (24  Tex,  Crim. 

App.  603),  85. 
Guetig  V.  State   (66  Ind.  94),   161, 

166,  296. 
Guffery  v.  Deeds,  214, 
Guidici,  People,  v.  331. 
Guitterman  v.  Liverpool, etc. .  Steam- 
ship Co.  (83  N.  Y.  358),  156. 
Gulerette    v.   McKinley    (27    Hun' 

320),  129. 
Gulf  C.  &  S.  F.  Ry.  Co.  v.  EUis  (54 

Fed.  481),  138, 
Gumberg  v.  Treusch,  (61  N.  W.  872), 

32. 
Gunnell,  U,  S.  v.,  260. 
Gustafson,  State  v.,  260. 
Guttridge,  R.  v.,  299, 


1 


510 


TABLE  OF  CASES. 


Haas  V.  Green  (57  N.  Y.  S.  R.  545), 

163. 
Haggerty,  People  v.,  74,  261. 
Haggerty,  R.  v.,  130. 
Hagy,  R.  v.,  298. 
Haigh,  R.  v.,  261,  274,  275,  276. 
Haines,  R.  v.,  183. 
Haldane  v.  Harvey  (Burr,  2484),  138. 
Hale,  State  v.,  80. 
Hale  V,  State  (16  So.  387),  332. 
Halifax's  Case  (B.  N.  P.  298),  235 
Hall,  People r.,  390. 
Hall,  People  v.,  352. 
Hall,  R.  v.,  71,  90. 
Hall  V.  Barnes  (82  111.  228),  341. 
Hall  V.  People  (39  Mich.  717),  308. 
Hall  V.  Rankin  (87  la.  261),  162, 
Hall  V.  State  (132  Ind.  317),  264. 
Hall  V.  State  (40  Ala.  698),  260,  262. 
Hall  V.  Van  Vranklin  (64  How.  Pr. 

407),  219. 
Halleck,  Stater.,  66. 
Hamerton    v.   Hamerton  (2   Hagg. 

Con.  13),  344, 
Hampton    v.   State   (1    Tex.   Crira. 

App.  652),  234,  291,  336. 
Hand,  People  v..  43, 194. 
Handcock,  People  v.,  260. 
Handley,  R.  v.,  449. 
Handline    v.   State    (6  Tex.    Crim. 

App.  347),  128, 
Hannah  v.  State  (1  Tex.  Crim.  App. 

582),  80. 
Hanson,  R.  v.,  338,  407. 
Hanson,  State  v.,  296. 
Harborns,  R.  v. ,  234. 
Hardin  v.  State  (8  Tex.  App.  653), 

70. 
Hardtke  v.  State  (67  Wis.  552),  264. 
Hardy,  Com.,  v.  261. 
Hardy,  R.  v.,  275, 
Hardy  v.  U.  S.   (23  Wash.  L.  Rep. 

326),  116, 
Hare,  People  v.,  185,  281,  459. 
Harman,  Com.  v.,  30,  329,  330. 
Harnian,  State  i\,  113. 
Harmer,  R.  v.,  85. 
Harper,  U.  S.  v.,  326,  332. 
Harrigan,  State  v.,  296. 
Harrington  v.   Fry  (1  Ry.  &  Moo. 

90),  212. 
Harriot  v.  Sherwood  (82  Va.  1),  218. 
Harris,  People  v.,  30,  161,  387,  408, 

439,  479. 
Harris,  R.  v.,  65. 
Harris  v.   State  (28  Tex.  Cr,    App. 

308),  449. 
Harrison  v.  State  (37  Ala.  154),  265. 
Harrison  v.  State  (83  Ga.  129),  317. 
Harrison  v.  State  (6  Tex.  Cr.  App, 

42),  281,  309. 
Hart  V.  Hart  (2  Low.  Ch.  207),  349, 
Hart  V.  State  (15  Tex.  Crim.  App. 

202),  36,  41,  69. 


Hart  V.  State,  22  Tex.  Crim.  App. 

563),  132. 
Hartless  v.  State  (32  Tex.  88),  261. 
Hartley,  State  v.,  296. 
Hartung,  People  v.,  396. 
Harvey  v.  Smith  (17  Ind,  272),  1. 
Harvey  v.  U.  S.  (18  Ct.  CI,  470),  155. 
Harvvood  v.  Goodright  (Cowp,  37), 

139. 
Hastings,  R.  v.,  459. 
Hastings,  State  v.,  218,  219, 
Hastings  v.  Stetson  (130  Mass.  76), 

129, 
Hatch  V.  State  (6  Tex.  Crim.  App. 

348),  219. 
Hatchett  v.  Com,,  385,  393,  394,  395. 
Hathcock  v.  State  (88  Ga.  91),  263. 
Hatfield,  R.  v.,  49. 
Hawkins,  Com.  i\,  52. 
Hawkins,  R.  v.,  251. 
Hawkins,  R.  v.,  236. 
Hawkins    v.    Grimes    (13  B.    Mon. 

557),  217. 
Hawkins  v.  State  (12  S,  W.  490),  281. 
Haworth,  R,  v.,  299, 
Hayden,  State  v.,  334. 
Hayes,  R.  v.,  374, 
Haynes    v.   McRae  (101  Ala.   318), 

142, 
Hazard  v.  Vickery  (78  Ind.  64),  218. 
Heacock   v.    State    (13  Tex.  Crim. 

App.  97),  217,  219. 
Heald  v.  Thing  (45  Me.  392),  163. 
Hearn,  R.  v.,  116. 
Heath,  R.  v.,  187. 
Heath,  U.  S,  v.,  326. 
Heath  v.  Waters  (40  Mich,  157),  141. 
Heaton,  R.v.,  198, 
Heaton  v.  State  (2  Mo,  166),  115. 
Heed,  State  ij,,  330, 
Heed  v.  State  (25  Wis,  421),  85, 
Heine  v.  Com.  (91  Pa,  145),  262, 
Heldt  V.  State  (20  Neb.  493),  308. 
Henderson  v.  Hackney  (16  Ga,  521), 

215. 
Hendrickson,  People  v.,  42,  44,  46. 
Henley,  R,  v.,  370, 
Hennesey,  People  v.,  117. 
Henrich,  State  t'.,  295. 
Henry,  State  i'.,  260. 
Heron  v.  State  (22  Fla,  86),  53. 
Herrick  v.  Swomley  (56   Md.   489), 

216, 
Heslop  V.  Heslop  (82  Pa,  St,  537), 

144, 
Hester  v.  Com.  (29  S,  W,  875),  336, 
Hester  v.  Com,  (85  Pa.  139),  76. 
Hewett,  R.  v.,  89. 
Hicks'  Case  (1  City  Hall  Record,  66), 

124. 
Higgins,  R.  v.,  124. 
Hill  V.  Com,  (2  Grat.  594),  50, 
Hill  V.  State  (11  Tex.    Crim.   App. 

132),  117. 


I 


TABLE  OF  CASES. 


511 


Hill  V.  State,  (16  So.  901),  252. 
Hilland  v.  State  (31  N.  E.  359),  262. 
Hills  V.  Home  Ins.  Co.    (129  Mass. 

845),  162,  163. 
Himrod  v.  Gilnian  (147  111.  293).  217, 
Hindmarsh's   Case   (2  Leacli  C.   C. 

371),  365,  367. 
Hinley,  R.  v.,T3. 
Hirshman  v.  People  (101   111.    568), 

263. 
Hitchcock  V.  Burgett  (33  Mich.  501), 

165. 
Hitchcock  V.  Munger  (15  N.  Y.  102), 

343. 
Hobbs,  Com.  v.,  397. 
Hocker  v.  State  (30  S.  W.  873),  311. 
Hodge,  State  v.,  80,  88. 
Hodge  V.  State  (98  Ala.  10),  188,  194, 

199,  331. 
Hodges,  R.V.,  187. 
Hodgkins  v.  State  (89  Ga.  761),  332. 
Hodgkiss,  R.  v.,  266,  306. 
Hodgson,  R.  v.,  71. 
Hoffman  v.  W.  M.  &  F.  Ins.  Co.  (1 

La.  Ann.  216),  341. 
Hogan  V.  State  (36  Wis.  226),  261. 
Hogard,  State  v.,  306. 
Hogher,  R.  v.,  359. 
Holden,  State  v.,  99,  109,  377. 
Holland  v.  State  (131  Ind.  568),  260. 
Hollenschirt,  State  v.,  124. 
Holler  V.  State  (37  Ind.  57),  254. 
Holmes,  R.  v.,  243. 
Holmes,  R.  v.,  116. 
Holmes  v.  Goldsmith  (147  U.  S.  150  ; 

37  L.  Ed.  118),  36. 
Holmes   v.   State  (88  Ala.  26),   266, 

267. 
Holroyd,  R.  v.,  148. 
Holt,  R.  v.,  59. 
Hopkins,  R.  v.,  871. 
Hopkins,  State  v.,  213. 
Hopkins,  U.  S.  v.,  325. 
Hopkins  v.  McGuire  (85  Me.  78),  214. 
Horn  V.  State  (15  So.  278),  300. 
Home,  R.  v.,  299. 

Hornek  v.  People  (134  111.  139),  352. 
Horning,  State  r.,260. 
House  V.   State  (19  Tex.    Cr.    App. 

227),  309. 
Houser  v.  State  (58  Ga.  78),  97,  801, 

307. 
Housh  V.  State  (61  N.  W.  371),  237. 
Houston,  State  v.,  72. 
Hovey,  People  v.,  141. 
How,  People  i\,  497. 
How's  Case  (2  Wheel.  Cr.  Cas.  410), 

497. 
Howard,  State  v.,  183. 
Howard  v.  Providence  (6  R.  1.  514), 

163. 
Howard  v.  State  (8  Tex.  Crim.  App. 

58),  86,  75,  188. 
Howell,  R.  v.,  95. 
2 


Howell,  State  v.,  263,  317. 

Hoyt,  State  v. ,  56. 

Hoyt  V.  State  (120  U.  S.  430),  325, 

326,  331,  335. 
Hubby  V.  State  (8  Tex.  Crim.  App. 

597),  76,  192. 
Huff  V.  Nims  (11  Neb.  363),  215. 
Hughes,  People  v.,  327. 
Hughes,  States.,  128. 
Hughes,  U.  S.  V,,  330. 
Hughes  V.  Rodgers  (8  M.  &  W.  128), 

219 
Hughes  V.  State  (8  Humph.  75),  82, 

87. 
Humanson,  State  v.,  85. 
Humphreys'  Case,  306. 
Humphreys,  Ex  parte  (19  L.  J.  M.  C. 

189),  471. 
Humphreys,  R.  v.,  190, 
Humphreys,  R.  v.,  225,827,361,  381. 
Hunt  V.  Com.  (13  Grat.  757),  78. 
Hunt  V.    Lowell  Gas  Light  Co.   (8 

Allen,  169),  160. 
Huntv.  State  (1  Cr.  L.  Mag.  234),  300. 
Hunter,  R.  v.,  299,  247,  276,  278. 
Hunter,  State  v. ,  302,  554. 
Hunter  t'.  State  (48  Ga.  488),  41,  43. 
Hurley,  People  r..  87,  91. 
Hussey  v.  State  (87  Ala.  121),  262. 
Huston  V.  Schindler  (46  Ind.  38),  218. 
Hutchins'  Case  (4  City  Hall  Rec.  119), 

214. 
Hyatt  V.  State  (25  S.  W.  291),  88. 

In  re  Gordon's  Will  (28  Atl.  268),  220, 

222,  224,  225. 
In  re  Will  of  Norman,  161. 
In  re  Rockey's  Estate  (155  Pa.   St. 

455),  221. 
Ingalls  V.  State  (48  Wis.  647),  79,  83, 

87,  459. 
Ingram,  State  v.,  80,  102.  104. 
Ings,  R.  v.,  887,  407. 
Irving,  People  v.,  268. 
Isaacs,  R.  v.,  108. 

Jachne,  People  r.,  117,  118. 

Jack  V.  State  (20  Tex.  Crim.  App. 

650),  108. 
Jackson,  Com.  v.,  59. 
Jackson,  People  v.,  243. 
Jackson,  State  v.,  183. 
Jackson,  U.  S.  v.,  268. 
Jackson  v.   Burnham  (39  Pac.  577), 

161. 
Jackson  v.  Phillips  (9  Cowp.  94),  214. 
Jackson  v.  State  (9  Tex.  Crim.  App. 

114),  54,  107. 
Jackson  v.  State  (20  Tex.  Cr.  App. 

190),  809. 
Jackson  v.  State  (17  So.  333),  336. 
Jacobs,  State  v.,  190. 
James  r.  State  (45  Miss.  572),  303, 

322,  324. 


512 


TABLE  OF  CASES. 


Jameson  v.  State  (25  Neb.  185),  333. 
Jamison  v.  People  (145  111.  357),  127, 

131,  282,  320. 
Jane,  The,  v.  U.  S.  (7  Cranch,  363), 

208,  302. 
Jane  v.  Com.  (2  Met.  30),  327,  333. 
Jarrell  v.  State  (58  Ind.  293),  329. 
Jarvis,  R.  v.,  116,  459. 
Jarvis,  R.  v.,  72. 
Jarvis  V.  Vanderford  (21  S.  E.  302), 

217. 
Jeflferds  v.  People  (5  Park.  Cr.  Rep. 

523),  57,  126,  301. 
JeflEerson,  Stater.,  330. 
Jefiferys,  R.  v.,  180,  186. 
Jenkins,  State  v.,  81,  83. 
Jenkins  v.  State  (62  Wis.  49),  16,  89. 
Jennett,  State  v.,  95. 
Jennings,  State  v.,  82,  317. 
Jernigan  v.  State  (10  Tex.  Crim.  App. 

546),  280. 
Jerome,  State  v.,  267. 
Jerry  et  al.  v.  Townsend  (9  Md.  145), 

160. 
Jewett  V.  Banning  (21  N.  Y.  27),  29. 
Jim  V.  State  (15  Ga.  535),  116. 
Joe  V.  State  (38  Ala.  422),  116,  324. 
Joe  V.  State  (6  Fla.  591),  385. 
Johnson,  People  v.,  98,  105. 
Johnson,  People  v.,  30,  169,  277,  330, 

498. 
Johnson,  R.  v.,  221,  224. 
Johnson,  State  v.,  195,  300. 
Johnson,  State  v. ,  333. 
Johnson,  State  r.,  270. 
Johnson,  U.  S.  v.,  28. 
Johnson  v.  Com.  (115  Pa.  369),  179, 

185. 
Johnson  v.  Com.  (17  Cent.  L.  J.  428), 

354 
Johnson  v.  Com.  (29  Grat.  796),  76, 

345. 
Johnson  r.  Deverne  (19  Johns.  134), 

213. 
Johnson  v.   State    (18  Tex,    Crim. 

App.  385),  54.  129. 
Johnson  v.  State  (59  Ala.  37),  117. 
Johnson  v.  State  (47  Ala.  62),  37. 
Johnson  v.  State  (94  Ala.  35),  262. 
Johnson  v.  State  (14  Ga.  55),  36,  231. 
Johnson  v.  State  (27  Neb.  687),  281. 
Johnson  v.  State  (34  Neb.  257),  263. 
Johnson  v.  State  (24  S.  W.  285),  449. 
Johnson  v.  U.  S.  (157  U.  S.  320),  237. 
Johnston  Harvester  Co.  v.  Milburn 

(72  Mich.  265),  226. 
Jones,  People  v.,  478. 
Jones,  People  v.,  117. 
Jones,  R.  i\,  459. 
Jones,  R.  v.,  53. 
Jones,  R.  v.,  123. 
Jones,  R.  v.,  265. 
Jones,  R.  v.,  127. 
Jones,  Stater.,  336. 


Jones,  State  v.,  42,  44. 

Jones,  U.  S.  v.,  262. 

Jones  V.  Greaves  (36  Ohio  St.  2),  322. 

Jones  V.  Gregory  (48  111.  App.  230),  2. 

Jones  V.  State  (13  Tex.  Cr.  App.  1), 

293. 
Jones  V.  State  (71  Ind.  66),  156. 
Jones  V.  State  (76  Ala.  8),  265. 
Jones  V.  Tucker  (41  N.  H.  547),  163. 
Jordan,  State  v.,  85,  87. 
Jordan  v.  Osgood  (109  Mass.  457),  58. 
Josephs,  People  v.,  263. 
Jupitty  V.  People  (34  111.  516),  260. 

Kabrick,  Stater.,  270. 

Kane  r.  Hibernia  Ins.  Co.  (39  N.  J. 

L.  697),  341. 
Karr  r.  State  (14  So.  851),  252. 
Keasby,  State  v.,  326. 
Keddick,  State  v.,  320. 
Kee  r.  State  (28  Ark.  155),  263. 
Keeler,  State  r.,  352,  354. 
Keener  v.  State  (94  Mo.  311),  254. 
Keener  r.  State  (18  Ga.  149),  56. 
Kehoe  v.  Com.  (85  Pa.  St.  127),  300. 
Keithler  v.  State  (10  Sm.  &  M.  192), 

117. 
Keller,  U.  S.  v.,  332. 
Kelley  r.  People  (17  Colo.  130),  291. 
Kelly,  People  r.,  271,  295. 
Kelly,  Stater.,  79,  87. 
Kelly,  Stater.,  61. 
Kelly,  Stater.,  80. 
Kelly  r.  People  (55  N.  Y.  565),  128, 

332. 
Kelly  V.  State  (6  Ga.  12),  41,  42. 
Kellogg  r.  Krauser  (14  S.  &  R.  137), 

153. 
Kelsey  r.  Bush  (2  Hill,  440),  122, 124. 
Kemp  r.  State  (28  Tex.  Cr.  App.  519), 

458. 
Kempner  r.  Churchill  (9  Wall.  362), 

28. 
Kendall  r.  State  (55  Ala.  196),  123. 
Kendig  v.    Overhulser  (58  la.  195), 

341. 
Kendrick  r.  State  (55  Miss.  436),  128. 
Keniston  r.  Rowe  (16  Me.  83),  184. 
Kenneda  r.  State  (16  Tex.  Cr.  App. 

258),  309. 
Kennedy,  People  v.,  16. 
Kennedy,  People  v.,  190. 
Kennedy,  State  v.,  82. 
Kennedy,  Stater,,  42,  44,  82. 
Kennon  r.  State,  117. 
Kenrick  r.  Kenrick  (4  Hagg.  Ecc.  R. 

114),  350. 
Kent,  Stater.,  101,  209. 
Keogh,  R.  v.,  260. 
Kepper,  State  r. ,  37. 
Kern,  People  v.,  41. 
Kerr,  People  v.,  263. 
Kerr,  People  r.,  332,  333,  466,  479. 
Kerwin  v.  HiU  (37  111.  209),  217. 


TABLE  OF  CASES. 


513 


Kesler,  People  r.,  42,  45. 

Kidd  V.  State  (83  Ala.  58),  33 

Kilgore,  Stater.,  263. 

Killam,  R.  v.,  150,  277. 

Kimball,  Com.  v.,  233. 

Kimbrough  v.  State  (76  Ga.  787),  143. 

King,  Stater.,  319. 

King,  State  v.,  137,  265. 

King,  State  v.,  252. 

King,  U.  S.r.,74,  326,  331. 

King  V.  State  (13  Lea,  51),  190. 

King  V.  State  (19  Tex.  Cr.  App.  658), 

333. 
King  V.  Whitley  (1  Lead.   Cr.  Cas. 

185),  59. 
Kinney,  State  v. ,  259. 
Kinnev  v.  Flynn  (2  R.  I.  319),  214. 
Kirby." People  v.,  259,  261. 
Kirkaldie  v.  Paige  (17  Vt.  256),  142. 
Kirksey  v.  Kirksey  (41  Ala.  626),  216. 
Kistler  v.  State  (54  Ind.  400),   259, 

262. 
Kirkwood,  R.  v.,  71. 
Klinger,  Stater.,  319. 
Knapp,  Com.  v.,  113. 
Knapp,  Stater.,  243. 
Knickerbocker  v.  People  (43  N.  Y. 

177),  80,  96,  103. 
Knight,  Stater.,  167. 
Knowles,  State  r.,  117. 
Knowles  r.  Scribner  (57   Me.   495), 

342. 
Kohl,  R.  v..  303. 

Kollock  r.  State  (60  N.  W.  817),  311. 
Kriel  r.  Com.  (5  Bush,  362),  319. 
Kring  r.  Mo.  (107  U.  S.  221),  3. 

La  Page.  State  v.,  58. 

Lackin,  State  v.,  41. 

Laird,  People  r.,  262. 

Lake,  People  r.,  164. 

Lake  r.  People  (1  Park.  Cr.  R.  495), 

49,  156,  295. 
Lamb,  People  r.,  262. 
Lambkin  r.  State  (12  Tex.  Crim.  App. 

341),  154. 
Lamson's  Case,  397. 
Lan  r.  Fletcher  (62  N.  W.  357),  156. 
Lanes,  People  r.,  117. 
Lang  r.  Ferrant  (55  Mmn.  415),  238. 
Langdon  r.  People  (133  111.  382),  112. 
Langford  r.  State  (32  Neb.  783),  330. 
Langford  r.  State  (33  Fla.  233),  260. 
Langford  r.   State   (17  Tex.   Crim. 

App.  445),  106. 
Langraead,  R.  v.,  95. 
Lann  v.  State  (25  Tex.  App.  495),  262. 
Larison  r.  Larison  (30  N.  J.  Eq.  100), 

348. 
Laros  r.  Com.  (84  Pa.  200),  295. 
Latham  r.  Latham  (30  Grat.    307), 

350. 
Law  V.  Merrill  (6  Wend.  268),  118. 
Law  V.  State  (33  Tex.  37),  29. 


Lawless  r.  State  (4  Lea,  173),  308. 

Lawler,  State  v.,  43. 

Lawrence,  State  r.,  319. 

Lawson,  R.  v.,  385,  433. 

Lawton  r.  Sweeney  (8  Jurist,  964), 

140. 
Laxton,  State  v.,  269. 
Ln,ayto  R.  v.,  158. 
Le  Comte  r.  U.  S.    (23  Wash.  L. 

Rep.  482),  336. 
Lea  r.  State  (29  S.  W.  900),  270. 
Leabo,  State  v.,  481. 
Leabo,  Stater.,  330. 
Leach,  Com.  v.,  186. 
Lee,  People  r.,  260,  326. 
Lee,  Stater.,  264. 

Lee  V.  State  (2  Tex.  App.     339),  263. 
Lee  r.  State  (14  Tex.  Cr.  App.  266), 

309. 
Lee  V.  State  (76  Ga.  498),  380. 
Lee  Gam,  People  r.,  271,  272. 
Leeper  r.  State  (29  Tex.  Cr.  App. 

154),  309. 
Lehman  r.  State  (18  Tex.  Crim.  App. 

174),  80,  90. 
Leigh  r.  People  (113  lU.  372),  333. 
Leonard,  Com.  v.,  262. 
Leonard  r.  Terr.  (2  Wash.  Terr.  381), 

326,  327,  465. 
Leppere,  State  v.,  263. 
Letty  V.  State  (Tex.  Crim.  App.  Feb. 

9th,  1893),  265. 
Levigne's  Case  (17  Nev.  445),  263. 
Levison  r.  State  (54  Ala.  520),  122. 
Lewis,  State  v. ,  69. 
Lewis  r.  Sapio  (Moo.  &  Mai.  39),  69, 

211. 
Lewis  r.  State  (96  Ala.  6),  135. 
Lexington    Ins.    Co.   r.   Pauer    (16 

Ohio  324),  340. 
Lincecum   r.   State  (29  Tex.   App. 

323),  264. 
Lincoln  B.  H.  R.  Co.  r.  Sutherland 

(62  N.  W.  859),  156. 
Lindley,  Stater.,  260. 
Lindsel  r.  People  (63  N.  Y.  243),  90, 

98,  136,  376. 
Link  r.  Sheldon  (136  N.  Y.  1),  156, 

164. 
Linn  r.  Sigsbee  (67  111.  75).  155. 
Linton  r.  State  (88  Ala.  216),  265. 
Little  r.  Ragan  (83  Ky.  321),  109. 
Livingstone  r.  People  (16  So,  801), 

199. 
Locke,  Com.  v.,  129. 
Lockhart  r.    State  (29  Tex.    Crim. 

App.  35),  80. 
Loeffner  r.  State  (10  Ohio  St.  59) 

295  319 
Logan  r.  State  (16  Ky.  L.  Rep.  508), 

110. 
Loggins  r.  State  (32  Tex.   Cr.  App. 

364),  336. 
Long,  State  v.,  117. 


514 


TABLE  OF  CASES. 


Long  r.  First  German  Congregation 

(6^  Pa.  St.  156),  163. 
Long  V.  State  (22  Ga.  40),  122. 
Long  V.  State  (38  Ga.  491),  332. 
Long  V.  State  (23  Neb.  33),  260. 
Longborne,  State  v.,  116. 
Looker,  R.   v.,   Ill,     200,   256,  286, 

472. 
Lopez  V.  State  (20  S.  W.  395),  301. 
Lord  Mayor,  R.  v.,  471, 
Louisville,  etc.,  Ry.  Co.  v.  Falvey 

(104  Ind.  409),  161, 
Love  V.  State  (15  Tex.  Cr.  App.  563), 

298. 
Loveden  v.  Loveden  (4  Eng.  Ecc.  R. 

461),  346. 
Lovett  V.  State  (60  Ga.  257),  109. 
Lovett  V.  State  (17  L.  R.  A.   705), 

336. 
Lovelady  v.  State  (14  Tex.  Cr.  App. 

545),  362,  380. 
Loveless,  State  v.,  360. 
Lowder  v.  Com.  (8  Bush,  432),  324. 
Lowenberg  v.  People  (5  Park.  Crim. 

Rep.  414),  263. 
Luby  V.  Com.  (12  Bush,  1),  112. 
Lull,  State  v.,  102. 
Lunning  v.  State  (1  Chand.  178),  156. 
Lynch  v.  Com.  (77  Pa.  St.  205),  320. 
Lynn  v.  Com.  (13  S.  W.  74),  241, 
Lyon  V.  Lyman  (9  Conn.  55),  218. 
Lyons,  People  v.,  56. 

McAllister.  State  v.,  270. 

McBee  v.  Bowman  (89  Tenn.  132), 

308. 
McCahill,  State  v. ,  55. 
McCallam,  People  v.,  201. 
McCann,  People  v. ,  319. 
McCann  v.  State  (13  Sm.  &  M.  471), 

179. 
McCarthy,  Com.  v.,  68. 
McCarty  v.  Com.  (20  S.  W.  229),  156, 
McCarty  v.  People  (51  111.  231),  269. 
McCleskey  v.  State  (13  S.  W.  997), 

310. 
McClure  v.  Purcell  (6  Ind.  330),  290. 
McConnell  v.  Del.  Mut.  Ins.  Co.  (18 

111.  228),  341. 
McConkey  v,  Gaylord  (1  Jones'  L. 

94).  212. 
McCorkle  v.  Binns,  214. 
McCue  V.  Com.  (78  Pa.  St,  185),  41. 
McCullough  V.  State   (48  Ind,  109), 

374. 
McCullough  V.   State   (23  Tex.  Cr. 

App.  620),  333. 
McCurdy,  People  v.,  198. 
McDaniel,  R.  v.,  244. 
McDaniel  v.  State  (53  Ga.  253),  196, 

198. 
McDonald,  State  v.,  122. 
McDonald  v.  State  (22  S.   W.  403), 

109. 


McDonel    v.  State  (18  Cent.  L.    J 

374),  110,  191,  266. 
McDougal,  R,  v.,  374. 
McElvaine,  People  v.,  158. 
McElven  v.  State  (30  Ga.  869),  332. 
McFall,  People  v.,  116 
McGhee,  U.  S.  v.,  51,  156. 
McGill  V.  State  (25  Tex.  App.  499), 

107,  197,  273,  375. 
McGinnis,  State  v.,  259, 
McGloin,  People  v.,  113. 
McGregor  v.  State  (16  Ind.   9),  72, 

324  327. 
McGuir'e  v. '  People  (44  Mich.  286), 

QOg     330 

McGuir'e  ■y.'state  (37  Miss.  269),  324. 
McGuire  v.  State  (43  Tex.  210),  326. 
McGungill,  People  v.,  268. 
McHenry  v.  State  (40  Tex.  46),  124. 
McKay  v.  Lasher  (42  Hun,  270),  217. 
McKay  v.  Overton  (65  Tex.  82),  155. 
McKechnie,  R.  v.,  101,  209. 
McKee,  Pennsylvania  v.,  214. 
McKenzie,  U.  S.  v.,  331. 
McKenzie  v.  State  (42  Ga.  334),  819. 
McKie,  Com.  v.,  292,  293. 
McKinley,  R.  v„  233. 
McLain,  State  v..  318. 
McLain  v.  Com.  (99  Pa.  St.  86).  47. 

172,  260. 
McLain  v.  State  (30  Tex.  App.  482), 

199. 
McLain  v.  State  (18  Neb.  154),  217. 
McLarens,  R.  v.,  92,  249. 
McMahon,  People  v.,  126. 
McMahone,  Com.  v.,  131,  185,  277. 
McManus  v.  State  (36  Ala.  285),  54. 
McMechera  v.  McMeachem  (17  W- 

Va.  684),  158. 
McMeen  v.  Com.  (114  Pa.  St.  300), 

42,  44,  109,  329,  412. 
McMUlan,  U.  S.  v.,  216. 
McMillan  v.  State  (7  Tex.  Cr.  App. 

142),  461. 
McMurphy,  State  v.,  263. 
McNaghten,  R.  v„  157,  319. 
McNair  v.  Com.  (2  Cas.  388),  214. 
NcNair  v.  State,  80. 
NcNally,  State  v.,  262. 
McQueen  v.  State  (82  Ind.  72),  359, 

262. 
McWhorter,  People  v.,  142, 

Mack  V.  State  (48  Wis.  271),  42,  45. 
Mackey  v.  State  (20  Tex.  Cr.  App. 

603),  309. 
Maclin  v.  State  (44  Ark.  115),  262. 
Macomber  v.  Scott   (10  Kan,  335), 

218. 
Madigan,  State  v.,  61. 
Mahan,  State  v.,  124. 
Maher  v.  People  (10  Mich.  212),  51. 
Mahn,  Statev.,  321. 
Maier,  State  v.,  170. 


TABLE  OF  CASES. 


515 


Mains  v.  State  (26  Tex.  Cr.  App.  14), 

458. 
Makin  v.  New  South  Wales  (L.  R. 

1894,  A.  C  57),  61. 
Mallan,  State  v.,  137. 
Manbrick,  State  v.,  200. 
Manchester,  State  v.,  320. 
Manluff,  State  v.,  259. 
Manning,  R.  v.,  324,  326,  374,  462, 

473. 
Manning  v.  John  Hancock   Mut.  L, 

Ins  Co.  (100  U.  S.  693),  280. 
Mansfield,  R.  v.,  92,  116. 
Mangano,  R.  v.,  98,  100. 
Marcey  v.  Gray  (16  Gray,  Mass.  161), 

222. 
Marion,  State  v. ,  349. 
Marion  v.  State  (7  Neb.  320),  42.  47. 
Marion  v.  State  (16  Neb.  349),  466. 
Marion  v.  State  (20  Neb.  223),  375. 
Markham,  R  v.,  180. 
Marler  v.  State  (67  Ala.  55),  41. 
Martin,  R.  v.,  49,  71. 
Martin  v.  Com.  (5  Leigh,  707),  72. 
Martin  v.  State  (28  Ala.  71),  68. 
Martin  v.  Taylor  (1  Wash.  C.  C.  1), 

214. 
Mason  v.  State  (42  Ala.  532),  59,  127. 
Massey  v.  Bank  (104  111.  830).  217. 
Matler  v.  State  (67  Ala.  55),  240. 
Matthews,  State  v.,  115. 
Matthews,  State  v. ,  300. 
Matthews  v.  State  (9  Lea  (Teun.), 

128),  116. 
Matthews  v  State  (55  Ala.  187),  117. 
Maxwell,  State  v.,  52,  302. 
May,  R.  r.,  413. 

May  V.  People  (60  111.  119),  332. 
Maybrick's  Case,  415. 
Mayenc's  Case.  200,  258. 
Mayer  v.  Mayer  (21  N.  J.  Eq.  246), 

344.  349. 
Mayhew  v.  Sullivan  Mining  Co.  (76 

Me.  100),  155. 
Mazagora,  R.  v.,  50. 
Meagher,  U.  S.  v.,  331. 
Means,  U.  S.  v.,  261,  326. 
Meistert'.  People  (31  Mich.  99),  68. 
Melcik  V.  State  (24  S.  W.  417),  382. 
Mellor,  R.  v.,  274,  294. 
Melville's  Case  (29  How.  St.  Tr.  763), 

338. 
Melvin  v.  Easby  (1  Jones'  L.  386),  164. 
Mendum  v.  Com.  (6  Rand,  704),  162, 

464. 
Meniaka  v.  State  (55  Ala.  47) ,  116. 
Merrick,  Stater.,  82. 
Merriman,  Com.  v.,  62. 
Merrill,  State  v.,  265. 
Merriman,  State  v.,  267. 
Merritt  v.  Shaw  (33  N.  E.  657),  218. 
Merritt  v.  State  (2  Tex.   Cr.   App. 

177),  310. 
Meyers,  Com.  v.,  114. 


Meyers  v.  Com.  (83  Pa.  St.  131),  319. 
Meyers  v.  State  (14  Tex.  Crim.  App. 

35),  186,  192. 
Mickey  v.  Com.   (9  Bush,  593),  325, 

332. 
Mickle  V.  State  (27  Ala.  20),  306. 
Midland  R.  Co.,  R.  v.,  140. 
Miles  V.  Loomis  (75  N.  Y.  288),  215. 
Miles  V.  State  (93  Ga.  117),  276,  295, 
Millain,  State  •??.,  328. 
Millard,  People  v.,  165,  293,  352,  384, 

885.  890,  892,  488. 
MiUer,  Com.  v.,  327. 
MiUer,  State  v.,  122,   124,  165,  168, 

237,  249,  300.  362. 
Miller  v.  Fraser  (4  Id.  55),  227. 
Miller  v.   Miller  (20  N.  J.  Eq.  217), 

347. 
Miller  v.  People  (39  111.  457),  138, 273, 

276,  818,  332. 
Miller  v.  State  (40  Ala.  64),  116,  122. 
Miller  v.  State  (21  S.  E.  128),  116. 
Miller  v.  State  (25  Wis.  384),  113. 
Milling,  State  v.,  303. 
Milhvard,  R.  v.,  71. 
Milwaukee  &  St.  P.  R.  Co.  v.  KeUogg 

(94  U.  S.  472),  155. 
Mingo,  U.S.  v.,  52. 
Minich  v.  People  (8  Colo.  440),  333. 
Mitchell,  Com.  v.,  113. 
Mitchell,  People  v.,  218. 
Mixer  v.  Bennett  (70  la.  329),  217. 
Mockford,  R.  v.,  358. 
Moelchen,  State  v.,  44. 
Moett,  People  r.,  262. 
Mondragon  v.  State  (33  Tex.  480),  89. 
Monke  v.  Butler  (1  Roll.  R.  83),  235. 
Monghan  v.  State  (57  Ga.  102),  309, 

314. 
Monk  V.  State  (27  Tex.  Cr.  App.  450), 

374. 
Monroe  v.  State  (23  Tex.  210),  335, 
Montgomery,  Com.  v.,  103. 
Montgomery,  U.  S.  v.,  113. 
Montgomery  v.  State  (13  Tex.  Crim. 

App.  669),  81,  310. 
Moody,  State  v.,  133,  137. 
Moody  V.  Rowell  (17  Pick.  490),  214. 
Moody  V.  State  (37  Tex.  App.  287), 

277. 
Moon's  Adm.  v.  Crowder  (72  Ala.  79), 

216. 
Moore  v.  Ellis  (89  Wis.  108),  166. 
Moore  v.  State  (17  Ohio  St.  521),  156. 
Moore  v.  State  (64  Ga.  449),  248. 
Moore  v.  U.  S.  (91  U.  S.  270),  216. 
Morehouse  v.   Matthews  (2  Comst. 

514),  154. 
Moreno  v.  State  (24  Tex.  Crim.  App. 

401),  81,  90,  91. 
Morey,  Stater.,  831. 
Morgan,  Com.  v.,  268. 
Morgan,  R.  v.,  219. 
Morgan,  State  v.,  452. 


516 


TABLE  OF  CASES. 


Morgan  v.  State  (48  Ohio  St.  371), 

331,  336. 
Morgan  v.  State  (88  Ala.  223),  263, 

269. 
Moore,  State  v.,  96,  118. 
Morris,  State  v.,  198,  199. 
Morrison  v.   Porter  (35  Minn.  425), 

216,  218. 
Morrow,  People  v.,  478. 
Morse  v.  State  (6  Conn.  9),  153. 
Mortimer  v.  Craddock  (12  L.  J.  N.  S. 

166),  139. 
Mose  V.  State  (36  Ala.  211),  116,  118, 

335. 
Mossom  V.  Ivy  (10  St.  Tr.  616),  228. 
Mott,  U.  S.  v.,  119. 
Moultrie,  State  v.,  95. 
Moulton  V.  State  (88  Ala.  116),  267. 
Mountford,  R.  v.,  188. 
Moxley,  State  v.,  42,  44,  301. 
Mudd  V.  Suckermore  (5  A.  &  E.  705), 

210. 
Mullen,  Com.  v.,  265. 
Muller's  Case,  327. 
Mullins  V.  Com.  (20  S.  W.  1035),  118. 
MuUins  V.  People  (110  111.  42),  333. 
Miinco,  State  v. ,  52. 
Munson  v.  Atwood  (30  Conn.   102), 

343. 
Murieta  v.   Wolfhagen  (2  C.  &  K. 

744),  213. 
Murphey  v.  State  (11  Colo.  170),  273. 
Murphy,  R.  v.,  338. 
Murphy  v.  People  (63  N.  Y.  590),  47, 

198. 
Murphy  v.  State  (31  Fla.  166),  318. 
Murphy  v.   State  (17  Tex.  Cr.  App. 

645),  309. 
Murray,  People  v.,  300. 
Murray,  State  v.,  243. 
Murray  v.  State  (1  Tex.  Crim.  App. 

417),  52. 
Murrell  v.  State  (46  Ala.  89),  127, 133, 

137. 
Muslim,  Stater.,  330. 
Myers  v.  Foscan  (3  N.  H.  47),  214. 
Myers  v.  State  (.6  Tex.  Cr.  Ajip.  1), 

331. 

Nash,  State  t'.,  326. 

Nation,  R.  v.,  167. 

Nave  V.  Tucker  (70  Ind.  15),  161. 

Neal  V.  Tesperman  (1  Jones  L.  446), 

Nelinrv.  State  (9  So.  193),  211,  216. 

Nelson,  People  v.,  301. 

Nelson,  State  v.,  336. 

Nelson  v.  Sun  Mutual  Ins.  Co.  (71  N. 

Y.  459),  163. 
Nelson  v.  U.  S.  (Pet.  C.  C.  235),  28. 
Neverson,  U.  S.  v.,  129. 
New  Jersey  Traction  Co.  v.  Brabban 

(32  Atl.  217),  155,  162. 
Newcomb  v.  State  (37  Miss.  383),  295. 


Newis  V.  Look  (Plowd.  412),  322. 
Newman  v.  State  (26  Ga.  637),  108. 
Newton,  People  v.,  196. 
Newton,  R.  v.,  158,  175. 
Newton,  U.  S.  v.,  261. 
Newton  v.  State  (92  Ala.  33),  36. 
Newton  v.  State  (21  Fla.  53),  160, 
Nicholas  v.  Com.  (21  S.  E.  364),  37, 

61,  381. 
Nichols  V.  Winfrey  (79  Mo.  545),  343. 
Noelke,  People  v.,  268. 
Noftsinger  v.  State  (7  Tex.    Crim. 

App.  301),  36. 
Noonan  v.  State  (55  Wis.  258),  156. 
Norfolk  V.  Gaylord  (28  Conn.  309), 

268. 
North,  State  v.,  87. 
North  V.  McConnell  (42  Mich.  473), 

218 
Northup,  State  v.,  260. 
Norwood,  States,  306. 
Norwood  V.  Slate  (20  Tex.  Crim.  App. 

306),  86. 
Nugent  V.  State  (18  Ala.  521),  242. 

O'Brian  v.  Doe  (6  Ala.  787),  336. 

O'Brian  v.  People  (48  Barb.  274),  116. 

O'Brien,  Com.  v.,  269. 

O'Brien  v.  O'Brien  (30  Atl.  875),  347. 

O'Bryan,  People  v.,  324. 

O'Coigley,  R.  v.,  130. 

O'Connell,  Com.  v.,  95. 

O'Connell  v.  People  (87  N.  Y.  377), 

296. 
O'Connor,  State  v.,  260. 
O'Kernan,  R.  v.,  185. 
O'Neal,  State  v.,  270. 
O'Neil,  People  v.,  346. 
O'Neil,  People  v.,  37. 
Ober,  State  17. ,  268. 
Oddy,  R.  v.,  58. 
Odle  V.  State  (13  Tex.  Crim.   App. 

612),  106. 
Offord,  R.  v.,  49. 
Ogburnt'.  State  (87  Ga.  173),  267. 
Ogle,  People  u.,  131. 
Ogletree  v.  State  (28  Ala.  693),  233, 

234. 
Ohio  Rd.  Co.  V.  Irwin  (27  III.  178), 

162. 
Okenian,  R.  v.,  35,  150. 
Oliver,  R.  v.,  185. 
Ormiston,  States.,  261. 
Ormsby  v.  People  (53  N.  Y.  472),  870. 
Orr,  States.,  303. 
Orr  V.  State  (34  Ga.  342),  108. 
Ortwein  v.  Com.  (76  Pa.  St.  414),  320. 
Oscar,  State  v.,  328,  333. 
Ostrander,  State  v.,  326. 
Outerbridge,  State  v. ,  189. 
Outlaw  V.  Hurdle  (1  Jones,  150),  217. 
Owen,  State  v.,  219. 
Owen  V.  State  (78  Ala.  425).  113. 
Owens,  State  v.,  96,  103. 


TABLE  OF  CASES. 


517 


Owens  V.  State  (52  Ala.  400),  330, 335. 

Padgett  V.  State  (103  Ind.  550),  52. 
Padillia,  People  v.,  301,  303,  306. 
Page  V.  Hemans  (14  Me.  478),  212. 
Paige  V.  Haggard  (5  Hill,  603),  154. 
Palayo,  R.  v.,  190. 
Palmer,  People  v.,  54,  345,  365,  374. 
Palmer,  R.  v.,  59,  142,  146,  231,  247, 

389,  411,  428. 
Palmer,  State  v.,  43,  133,  137. 
Palmer  v.  Brody  (78  Wis.  483),  133. 
Palmer  v.  People  (87  Cal.  348),  55. 
Palmerston  v.  Terr.  (3  Wyo.  33),  327, 
Paolick,  People  v..  248,  259. 
Parker  v.  State  (20  Tex.  Grim.  App. 

451),  97. 
Parrish  v.  Com.  (82  Va.  1),  260. 
Parsons,  State  v. ,  354. 
Partridge,  R.  v.,  89. 
Patch,  R.  v..  30,  147,  148,  185,  230, 

305,  486. 
Pate,  R.  v.,  157. 
Pate  V.  State  (94  Ala.  14),  42,  44,  56, 

262,  317   324. 
Patterson,  People  v.,  62. 
Patterson,  State  v.,  115. 
Patterson  v.  Patterson  (20  Atl.  347), 

350. 
Patterson  v.  People  (46  Barb.  625), 

319 
Patterson  v.  State  (41  Neb.  538),  267. 
Patza,  State  v. ,  69. 
Paid  V.  State  (14  So.  634),  238,  260. 
Pauli  V.  Com.  (89  Pa.  432),  265. 
Paulk,StatetJ.,  295. 
Paxton,  State  v.,  301. 
Payne  v.  State  (57  Miss.  348),  84. 
Pay  ton.  Stater.,  330. 
Pearce,  State  v.,  265. 
Peck  V.  Callaghan  (95  N.  Y.  73),  219, 

220. 
Pendergast,  U.  S.  v.,  216. 
Penhallow,  People  v. ,  122. 
Pennsylvaina   v.    McKee  (Addison, 

33),  214. 
People  V.  Abbott  (36  Pac.  129).  82. 
People  V.  Ah  Chung  (58  Cal.  398),  481. 
People  V.  Ah  Fook  (64  Cal.  380),  129. 
People  V.  Ah  Ki  (20  Cal.  177),  80. 
People  V.  Ah  Sing  (51  Cal.  372),  333. 
People  V.  Ah  Sing  (59  Cal.  400),  81. 
People  V.  Aiken  (66  Mich.  460),  281, 

382. 
People  V.  Alviso  (55  Cal.  2.30),  377. 
People  V.  Antonio  (27  Cal.  404),  80, 

95. 
People  V.  Armstrong  (56  Cal.  397), 

301. 
People  V.  Arthur  (93  Cal.  536),  201. 
People  i\  Ashe  (44  Cal.  288),  260,  328. 

People  V.  Bagley  (16  Wend,  53), . 

People  V.  Barrie  (49  Cal.  342),  113. 
People  V.  Beck  (58  Cal.  42),  303,  336. 


People  V.  Beckwith  (108  N.  Y.  67), 

365. 
People  V.  Bell  (49  Cal.  486),  262,  295. 
People  V.  Bemis  (51  Mich.  422),  37, 

105. 
People  V.  Bemmerly  (87  Cal.    117), 

328. 
People  V.  Bennett  (49  N.  Y.  137),  301, 

362,  365. 
People  V.  Benson  (6  Cal.  221),  243. 
People  V.  Blake  (1  Wheel.  Cr.  Cas. 

272),  324. 
People  V.  Bodine  (1  Denio,  482),  154, 

270. 
People  V.  Bowman  (81  Cal.  566),  262. 
People  V.  Brannon  (47  Cal.  96),  280, 

333 
People  'v.   Brooks  (131  N.   Y.   321), 

263. 
People  V.  Buchanan,  391. 
People  V.  Burns  (2  Park.  C.  R.  34), 

116. 
People  V.  Burns  (67  Mich.  537),  106. 
People  V.  Chambers  (18  Cal.  382),  80. 
People  V.  Christensen  (85  Cal.  568), 

325 
People  v.  Clark  (2  Hun,  520),  75. 
People  V.  Clements  (42  Hun,  853), 

262. 
People  V.  Cochran  (1  Wheel.  Cr.  Rep. 

81),  96. 
People  V.  Coffman  (24  Cal.  230),  319. 
People  V.  Conroy  (33  Hun,  119),  52. 
People  V.  Cox  (70  Mich.  247),  330,  331. 
People  V.  Craine  (34  Cal.  191).  306. 
People  V.  Crapo  (76  N.  Y.  288),  268. 
People  V.  Cronin  (34  Cal.  203),  478. 
People  V.  Davis  (64  Cal.  440),  307. 
People  V.  Davis  (3  Cal.  106),  122. 
Peoples.  Davis  (19  N.  Y.  S.  781),  326. 
People  V.  De  Graff  (1  Wheel.  C.  C. 

205),  153. 
People  V.  Dick  (32  Cal.  113),  301. 
People  V.  Doggett  (62  Cal.  27),  262. 
People  V.   Eastwood  (14  N.  Y.  562), 

56. 
People  V.  Eckman  (72  Cal.  582),  306. 
People  V.  Elster  (5  Crim.    L.   Mag. 

687),  81,  85,  128. 
People  V.  Evans  (72  Mich.  367),  270. 
People  V.   Evening  News  (51  Mich. 

11)   322 
People  V.  Fairchild(48  Mich.  31),  332. 
People  V.  Ferguson  (1  City  Hall  Rec. 

65),  100,  208. 
People  V.  Finley  (38  Mich.  482),  331. 
People  V.  Flynn  (95  Mich.  276),  241. 
People  V.  Flynn  (73  Cal.  511),  105. 
People  V.  Foley  (59  Mich.  553).  301. 
People  V.  Fong  Ah  Sing  (64 Cal.  253), 

317. 
People  V.  Foo  Ching  (78  Cal.  169), 

268. 
People  V.  Fowler  (62  N.  W.  572),  63. 


518 


TABLE  OF  CASES. 


People  V.  Frasier  (2  Wheel.  Cr.  Rep. 

55),  97. 
People  V.  Fuhrman  (6l  N.  W.  865), 

295. 
People  v.  Garbutt  (17  Mich.  9),  261. 
People  V.  Gardner  (1  Wheel.  23),  74, 

270. 
People  u.  Gardner  (2  Wheel.  Cr.  Rep. 

23),74. 
People  V.  Gassaway  (23  Cal.  404),  80. 
People  V.  Gettv  (49  Cal.  581),  102. 
People  V.  Gibson  (106  Cal.  458),  192. 
People  V.  Gilabert  (39  Cal.  653),  122. 
People  V.  Gleason  (1  Nev.  176),  263. 
People  V.  Gonzales   (35  N.  Y.  49), 

193 
People  V  Gordon  (40  Mich.  716),  79. 
People  V.  Gowgill  (93  Cal.  596),  263. 
People  V.  Green  (I  Park.  Crim.  Rep. 

11),  127. 
People  u.  Greenwall  (108  N.  Y.  296), 

264. 
People  V.  Guidici  (100  N.  Y.  503), 

331. 
People  V.  Haggerty  (1  City  Hall  Rec. 

195),  74,  261. 
People  V.  Hall  (48  Mich.),  390. 
People  V.  Hall  (42  Mich.  485),  352. 
People  V.  Hand,  43,  194. 
People  V.  Handcock  (7  Utah,  170), 

260. 
People  V.  Hare  (57  Mich.  505),  185, 

281,  459. 
People  V.  Harris  (136  N.  Y.  423),  30, 

161,  387,  408,  439,  479. 
People  V.  Hartung  (4  Park,  Cr.  R. 

256),  396. 
People  V.  Hendrickson  (1  Park,  Cr. 

R.  406).  42,  44,  46. 
People  V.  Hennesey  (15  Wend.  147), 

117. 
People  V.  Hovey  (92  N.  Y.  554),  141. 
People  V.   How  (2  Wheel.  Cr,  Cas, 

410),  497. 
People  V.  Hughes  (32  N.  E.  1105),  327. 
People  V.  Hurley  (60  Cal.  78),  87.  91. 
People  V.  Irving  (2  N.  Y.  Cr.  R.  171), 

268. 
People   V.  Jachne  (4   N.    Y,   Crim. 

Rep.  478),  117,  118. 
People  V.  Jackson  (3  Park,  C,  R.  391), 

243. 
People  V.  Johnson  (2  Wheel.  Cr.  Cas. 

361),  98,  105. 
People  V.  Johnson  (149  N.  Y.  350), 

30,  169,  277,  330,  498. 
People  V.  Jones  (2  Wheel.  Cr.  Cas. 

462),  478. 
People  V.  Jones  (31  Cal.  565),  117. 
People  V.  Josephs  (7  Cal,  129).  263. 
People  V.  Kelly  (35  Hun,  295),  271, 

295. 
Peoiilc  V.  Kennedy  (32  N.  Y.  141),  16. 
People  V.  Kennedy  (92  N,  Y,  141),  190. 


People  V.  Kern  (61  Clal.  244),  41.' 
People  V.  Kerr  (6  N.  Y.  Supp.  674), 

263. 
People  V.  Kerr  (6  N.  Y.  Cr.  R.  406), 

332,  333,  466,  479. 
People  V.  Kesler  (3  Wheel.  Cr.  Cas. 

18),  42.  45. 
People  V.  Kirby  (1  Wheel.  Crim.  Cas. 

64),  259,  261. 
People  V.  Laird  (60  N.  W.  457),  362. 
People  V.  Lake  (12  N.  Y.  358),  164. 
People  V.  Lamb  (2  Keyes,  360),  262. 
People  V.  Lane  (49  Mich.  340),  117. 
People  V.  Lee  (72  Cal,  623),  260,  326. 
People  V.    Lee  Gam  (69   Cal.   552), 

271,  272. 
People  V.  Lyons  (17  N.  E.  791),  56. 
People   r.    McCallara    (3  N.  Y.  Cr, 

Rep.  189).  201. 
People  V.  McCann  (16  N.  Y.  85),  319. 
People  r.  McCurdy  (68  Cal.  576),  198. 
People  V.  McElvaine  (121  N,  Y.  250), 

158, 
People  V.  McFall  (1  Wheel.  Cr.  Cas. 

107),  116. 
People  V.  McGloin  (91  N.  Y,  241),  113. 
People  V.  McGungill  (41   Cal.  423), 

268, 
People  V.  McMahon  (15  N,  Y.  384), 

126, 
People  V.  McWhorter  (4  Barb,  438), 

142, 
People  V.  Malaspina  (57  Cal.  628).  276. 
People  V.  Marble  (30  Mich.  309),  327. 
People  V.  Marks  (4  Park.  Cr.  R.  158), 

293. 
People  V.  Messersmith  (61  Cal.  246), 

295 
People  r.  Meyers  (2  Hun.  6),  133, 137. 
People  V.  Milgate  (5  Cal.  127),  233. 
People  V.  Millard  (53  Mich.  63),  165, 

293,  352,  384,  385,  390,  392,  438. 
People  V.  Mitchell  (92  Cal.  590),  218. 
People  V.  Moett  (23  Hun,  60),  262. 
People  V.  Morrow  (60  Cal.  142),  478. 
People  V.  Murray  (41  Cal.  66),  300. 
People  V.  Nelson  (85  Cal.  421),  301. 
People  V.  Newton  (31  Fla.  240),  196. 
People  V.  Noelke  (1  N.  Y.  Cr.  R.  495), 

268, 
People  V.  O'Bryan  (1  Wheel.  Cr.  Cas. 

21),  324. 
People  V.  O'Neil  (109  N.  Y.  251).  346. 
People  V.  O'Neil  (6  N.  Y.  Cr.  R.  274), 

37. 
People  V.  Ogle  (2  N.  Y.  Crim.  Rep. 

349),  131. 
People  V.  Padillia  (42  Cal.  535),  301, 

303,  306. 
People   V.  Palmer   (109  N.   Y.  110,) 

345,  365,  374. 
People  V.  Palmer  (96  Mich.  580),  54. 
People  V  Paolick  (7  N.  Y.  Cr.  R.  30), 

248,  259. 


TABLE  OF  CASES. 


519 


People  V.  Patterson  (36  Pac.  436),  62. 
People  V.  Penhallow  (43  Hun,  103), 

122. 
People  V.  Peterson  (93  Mich.  27),  258. 
People  V.  Phalen  (49  Mich.  492),  342. 
People  V.  Phipps  (39  Cal.  326),  281. 
People  V.  Poraeroy  (2  Wheel.  Crim. 

Rep.  159),  74. 
People  V.  Powell  (87  Cal.  348),  55. 
People  V.  Preston  (1  Wheel.  Cr.  Cas. 

41),  87. 
People  V.  Quackenboss  (1  Wheel.  Cr, 

Cas.  91),  136. 
People  V.  Rankin  (2  Wheel.  Cr.  Cas. 

467),  113. 
People  V.  Reaney  (4  N.  Y.  Cr.  R.  1), 

268. 
People  V.  Riley  (3  N.  Y.  Cr.  R.  374), 

150. 
People  V.  Robinson  (1  Park.  Cr.  R. 

655),  49. 
People  V.  Rolfe  (61  Cal.  540),  153. 
People  V.  Rubenstein,  41,  48,  248. 
People  V.  Sands  (5  N.  Y.  Cr.  R.  261), 

313. 
People  V.  Sansome  (84  Cal.  449),  75, 

98,  305. 
People  V.  Schryver  (43  N.  Y.  1),  319, 

322,  336,  354. 
People  V.  Scott,  (4  N.  Y.  Cr.  R.  306), 

260. 
People  V.  Severence  (67  Hun,  182), 

217. 
People  V.  Shuler  (38  Cal.  490),  303. 
People  V.  Smith  (39  Pac.   40),  168, 

336. 
People  V.  Smith  (15  Cal.  408),  116. 
People  V.  Smith  (59  Cal.  601),  263. 
People  V.  Smith  (1  Wheel.  Cr.  C.  131), 

86. 
People  V.  Spriggs  (33  N.  Y.  S.  R. 

989),  282. 
People  V.  Stanley  (47  Cal.  113),  132. 
People  V.  Stephens  (4  Park.  Cr.  R.), 

393,  396,  397,  409,  413,  435. 
People  V.  Stiebenvoll  (62  Mich.  329), 

332 
People  V.  Stone  (7  N.  Y.  Cr.  R.  430), 

318 
People  'v.  Stott  (4  N.  Y.  Cr.  R.  306), 

335 
People  V.  Strong  (30  Cal.  157),  303, 

336. 
People  V.  Sweeney  (133  N.  Y.  609), 

262. 
Peoples.  Sweeney  (41  Hun,  432),  143. 
People  V.  Thayers  (1  Park.  C.  R.  595), 

338. 
People  V.  Thiede  (38  Pac.  837),  156. 
People  V.  Thrall  (50  Cal.  415),  117. 
People  V.  Thurston  (1  Park.  Crim. 

R.  49),  154. 
People  V.  Turrell  (1  Wheel.  Cr.  Rep. 

34),  88. 


People  V.  Vane  (12  Wend.  78),  270. 
People  V.  Verlarde  (59  Cal.  457),  264. 
People  V.  Videto  (1  Park.  C,  R.  603), 

34,  478. 
People  V.  Walker  (38  Mich.  156),  261. 
People  V.  Walworth  (4  N.  Y.  Cr.  R. 

355),  53. 
People  V.  Warner  (63  N.  W.  405).  114. 
People  V.  Wayman  (138  N.  Y.  585), 

337. 
People  V.  White  (14  Wend.  Ill),  269. 
People  V.  White  (34  Wend.  530),  370. 
People  V.  Wicks  (3  Wheel.  Cr.  Cas. 

533),  134. 
People  V.  Wileraan  (44  Hun,  187), 

363. 
People  V.  Williams  (39  Hun,  530), 

183. 
People  V.  Wilson  (85  Cal.  44),  371. 
People  V,  Wilson  (30  Mich.  486),  81, 
People  V.  Wilson  (3  Park.  Cr.  R.  199), 

376. 
People  V.  Winters  (39  Cal.  653),  75. 
People  V.  Witherington  (59  Cal.  598), 

81. 
People  V.  Wohlform,  338. 
People  V.  Wolcott  (5  Crim.  L.  Mag. 

84),  134. 
People  V.  Wolff  (95  Mich.  635),  333, 
People  V.  Wong  AI  Foo  (69  Cal.  180), 

375. 
People  V.  Wyman  (15  Cal.  70),  134, 
Perkins  v.  Concord  Ry.  Co.  (44  N. 

H.  333),  158. 
Perkins  v.  State  (33  Tex,  109),  93, 
Perkins  v.  Stickney  (133  Mass.  317), 

163. 
Perry's  Case,  131. 
Perry  v.  Dubuque  S.  W.  R.  Co.  (36 

la,  106),  3, 
Perry  v.  State,  85. 
Perry  v.  State  (87  Ala.  30),  381,  326. 
Perry  v.  State  (44  Tex,  473),  52, 
Perry  v.  State  (41  Tex.  483),  79,  85. 
Perrys,  R.  v.,  362. 
Peterson,  People  v.,  258, 
Peterson  v.  Toner  (80  Mich,  550),  56, 
Petty  V.  Com.  (12  Ky.  L.  Per.  910), 

265. 
Phalen,  People  v.,  342. 
Pharr  v.  State  (9  Tex.   Crim.  App. 

129),  37.  98,  99,  263. 
Pharr  v.  State  (10  Tex.  Cr.  App,  485), 

304, 
Phelps,  State  r,,  113. 
Phelps,  Stater.,  61. 
Phelps,  State  v.,  103,  113. 
Phillips,  State  v.,  135. 
Phillips,  State  v.,  92. 
Phillips  V.  State  (39  Ga,  105),  334, 345. 
Phipps,  People  r,,  381, 
Phipps  V.  State  (3  Cold,  344),  151,  307. 
Pierce,  Stater..  333, 
Pierson  v.  People  (79  N.  Y.  436),  47- 


520 


TABLE  OF  CASES. 


Pike  V.  Chicago  (40  N.  E.  567),  163,     ' 
Pinckford  v.  State  (13  Tex.  Crim. 

App.  468),  44. 
Pinkham  v.  Cockrell  (87  Mich.  265), 

212 
Pitman' r.  State  (32  Ark.  354),  252. 
Pitsinger,  Com.  v.,  122. 
Pitts  V.  State  (42  Miss,  472),  117,  352, 

362, 
Place,  State  v.,  69. 
Pogin  V.  State  (13  Tex.  Crim,  App. 

283),  105. 
Poguev.  State  (12  Tex.  Cr.  App.  283), 

304,  313,  336. 
Polk  V.  State  (36  Ark.  117),  162,  165, 

385,  392. 
PoUak  V.  Harmon  (94  Ala.  420),  142. 
Pollard  V.  State  (Tex,  Crim.  App.  26 

S.  W.  70),  80.  91. 
PoUock  V.  Pollock  (71   N.  Y.  137), 

348,  349. 
Pomeroy's  Case,  (117  Mass.  143),  296, 

320. 
Pomeroy,  People  v.,  74. 
Pond  V.  State  (55  Ala.  196),  123. 
Poolton,  R.  v.,  449. 
Pope  V.  Askew  (1  Ired.  L.  16),  214, 

217, 
Porath  V.  State  (63  N,  W.  1061),  62, 
Porter,  State  v,,  332. 
Porter,  State  v.,  69. 
Porter  v.  State  (55  Ala,  95),  113, 
Porter  v.  State  (1  Tex,  Cr,  App.  394), 

297, 
Porterfield  v.  Com.  (23  S,  E,  352),  83. 
Posey,  State  v.,  42,  43, 
Potter,  Stater,,  113. 
Potter  V.  State,  (85  Tenn,  88),  254. 
Potts,  State  v.,  329,  331. 
Powell,  People  i'.,  55. 
PoweU  V.  Ford  (3  Stark,  164),  311, 
Powell  V.  Milburn,  (3  Wils.  355) ,  335, 
Powers  V.  State  (16  Tex,  546),  300, 
Prather  v.  Com,  (10  Crim.  L.  Mag. 

890),  197,  323,  334, 
Prator  v.  State  (15  Tex,  Crim,  App, 

363),  84, 
Pratt,  State  v.,  133.  123, 
Pratt  V.  State  (19  Ohio  St.  217),  243, 
Preston,  People  v.,  87, 
Preston  v.  State  (8  Tex,  Crim,  App, 

30),  36,  49,  136,  197, 
Price,  State  v.,  296, 
Price  V.  Richmond  &  D,  R,  Co,  (38 

S,  C,  199),  158,  165, 
Price  V.  State  (8  Ohio  St,  418),  116, 
Prince  v.  State  (100  Ala.  144),  273, 

295  330 
Puett  V.  Beard  (86  Ind,  104),  128. 
Pullen  V.  State  (28  Tex.  Cr.  App. 

114),  313. 
Purkey  v.  State  (3  Heisk.  26),  308,  332. 
Puryea  v.  State,  38  Tex,  Cr,  App,  73), 

363. 


Quackenboss,  People  v.,  136, 
Quinn  v.  Huggins  (63  Wis.  664),  16t 

R,  V.  Adams  (3  C,  &  P.  600),  90. 

R,  V.  Alcorn,  388, 

R.  V.  Aldridge  (3  F.  &  F.  718),  211. 

R,  V.  Allen  (I  Mo,  C,  C.  154),  298. 

R.  r.  Angers,  448. 

R.  r.  Arden(8  London  Med.  Gaz,  36), 

184, 
R,  V.  Arundel  (1  Le win's  C,  C,  115), 

354, 
R,  V.  Atwood,  459, 
R.  V.  Baines  (31  St,  Tr.  1991),  275. 
R.  V.  Baldry,  113,  116. 
R.  V.  Baldwin  (21  L,  J.  ML  C.  130), 

245, 
R,  V.  Ball  (1  Campbell,  324  ;  R.  &  R. 

133),  71. 
R.  V.  Banks  (1  Cox  C.  C.  238),  93, 
R,  V.  BaranelU  (C.  C,  C.  Ap,  1855), 

160, 
R.  V.  Barnard  (19  St,  Tr,  815),  257. 
R.  V.  Barnard  (19  St  Tr.  815),  257. 
R.  V.  Bartlett(7  C,  &  P.   832),  128, 

412. 
R.  V.  Bartlett  (7  C,  &  P.  832),  128, 

412. 
R,  V.  Bate,  206,  447. 
R,  V.  Beards,  204, 
R,  V.  Belaney,  428, 
R,  V.  Bell,  51, 
R,  V.  Benjamin  (C,  C,  C,  June,  1885), 

356, 
R.  V.  Bickle,  388, 
R.  V.  Bingham,  334,  250, 
R,  V.  Bishop,  369. 
R,  V.  Blandy  (18  St,  Tr,  1187),  28, 147, 

337 
R,  V.  Bleasdale  (2  C.  &  K.  765),  59,  73. 

R,  V.  Bolam,  148. 

R,  V.  Boober  (5  Cox's  C.  C,  272),  349. 

R,  V.  Booth,  171. 

R.  V.  Bowditch,  244. 

R.  V.  Bowman,  94. 

R.  V.  Brain  (6  C.  &  P.  350),  449. 

R.  V.  Brennan  (30  St.  Tr.  79),  272,  277. 

R.  V.  Brindley,  202. 

R,  V.  Britton  (1  F.  &  F.  354),  195. 

R.  V.  Brook  (31  St,  Tr,  1135,  1137), 
183,  185, 

R,  V.  Brooks  (6  Cox  C.  C,  151),  93, 

R,  V.  Brown, 

R,  V.  Buish  (1  Syme,  267),  247, 

R,  V.  Burdett  (4  B,  &  Aid,  161),  18, 
78,  140,  293,  293,  352, 

R,  V.  Burke,  369, 

R.  V.  Burt  (5  Cox's  C,  C.  384),  368, 

R.  V.  Burton  (23  L,  J.  M.  52  ;  6  Cox 
C,  C.  393),  309,  5.58, 

R.  V.  Butler  (3  C,  &  K.  221),  70. 

R.  V.  Byrne  (18  St.  Tr.  819),  183. 

R.  V.  Calder  (1  Cox  C,  C.  348),  413. 

R.  V.  Cane,  375. 


TABLE  OF  CASES. 


521 


R.  V.  Canning  (19  St.  Tr.  667),  244, 

274. 
R.  V.  Carroll  (2  East  P.  C.  400),  51. 
R.  V.  Carsewell,  221. 
R.  V.  Carter  (15  Cox  C.  C.  448),  73. 
R.  V.  Cheverton  (2  F.  &  F.  833),  370, 

373,  374. 
R.  V.  Clark,  110. 

R.  V.  Clay  (5  Cox  C.  C.  146),  243. 
R.  V.  Clewes  (4  C.  &  P.  221),  67,  123, 

375 
R.  V.  Clinch  (3  P.  &  F.  144),  181. 
R.  V.  Cochran  (Gurney,  479),  124, 292, 

474. 
R.  V.  Coke  (16  St.  Tr.  54),  51,  250. 
R.  V.  Coke  (R.  &  R.  653),  69. 
R.  V.  Cole,  266. 
R.  V.  Coleman,  127,  135,  180. 
R.  V.  Collier  (4  Jurist,  703),  255. 
R.  V.  Connor  (1  Cox  C.  C.  233),  471. 
R.  V.  Cook,  147,  376. 
R.  V.  Cooper  (2  C.  &  K.  318),  90. 
R.  V.  Coots  (Cox  C.  C.  188),  98. 
R.  V.  Coppard,  250. 
R.  V.  Corder,  383. 
R.  V.  Cotton  (12  Cox  C.  C.  400),  68, 

413. 
R.  V.  Couch  (4  Cox  C.  C.  163),  211. 
R.  V.  Courtnage,  188,  257. 
R.  V.  Courvisier,  186. 
R.  V.  Cowper  (13  How.  St.  Tr.  1106), 

379,  380. 
R.  V.  Coyle,  244. 

R.  V.  Crickmer  (16  Cox  C.  C.  701),  60. 
R.  V.  Crossfield  (26  St.  Tr.  215),  54, 

130,  142,  247. 
R.  V.  Crossley  (26  St.  Tr.  218),  337. 
R.  V.  Crowhurst  (1  C.  &  K.  370).  85. 
R.  V.  Crump,  188. 

R.  V.  Crutchley  (7  C.  &  P.  814),  449. 
R.  V.  Cruttenden  (6  Jurist,  267),  90. 
R.  V.  Dale  (16  Cox  C.  C.  703),  68. 
R.  V.  Davidson  (31  St.  Tr.  217),  259, 

265,  451. 
R.  V.  Dawtrey,  108. 
R.  V.  De  la  Motte  (21  St.  Tr.  810), 

140,  214. 
R.  V.  Dean  (6  Cox  C.  C.  23),  243. 
R.  V.  Debley  (2  C.  &  K.  818),  85. 
R.  V.  Delahaunt,  244. 
R.  V.  Delaney,  133. 
R.  V.  Despard  (28  St.  Tr.  521),  294. 
R.  V.  Dewhirst  (2  Stark.  614),  89. 
R.  V.  Donellan,  142,  146,  148,  389. 
R.  V.  Dixon  (2  M.  &  S.  11),  50. 
R.  V.  Donnall,  146,  389. 
R.  V.  Donnell,  134,  142.  148,  248. 
R.  V.  Dossett  (2  C.  &  K.  306),  64,  413. 
R.  V.  Downie, 

R.  V.  Downing,  251,  283,  284,  472. 
R.  V.  Drage  (14  Cox  C.  C.  85),  73. 
R.  V.  Dredge  (1  Cox  235),  358. 
R.  V.  Drory,  256. 
R.  V.  Duffin  (R.  &  R.  365),  51. 


R.  V.  Dunn  (1  Moo.  C.  C.  150),  73. 

R.  V.  Durham,  459. 

R.  V.  Dursley  (6  C.  «fe  P.  899),  95. 

R.  V.  Dyer,  95. 

R.  V.  Edge,  299,  370. 

R.  V.  Elder,  389, 

R.  V.  Eldridge  (R.  &  R.  441),  117. 

R.  V.  EUis  (6  B.  &  C.  145),  64. 

R.  V.  EUis,  95. 

R.  V.  Enoch  (5  C.  &  P.  539),  449. 

R.  V.  Exall  (4  F.  &  F.  922),  303,  465, 

466. 
R.  V.  Farler  (8  C.  &  P.  106),  459. 
R.  V.  Farrington  (R.  &  R.  209),  50. 
R.  V.  Faulkner  (  R.  &  R.  481).  117. 
R.  V.  Fennell(50  L.  J.  M.  C.  126),  116. 
R.  V.  Penning,  251,  387. 
R.  V.  Ferguson,  447. 
R.  V.  Ferrers  (19  St.  Tr.  885),  49. 
R.  V.  Fisher  (1  Leach,  286),  117. 
R.  V.  Fitter,  148,  256. 
R.  V.  Folsom  (4  F.  &  F.  103),  185. 
R.  V.  Foster  (6  Cox  C.  C.  521),  72. 
R.  V.  Frances  (4  Cox  C.  C.  57),  157. 
R.  V.  Francis  (12  Cox  C.  C.  612),  70. 
R.  V.  Eraser,  273. 
R.  V.  Freeman,  257. 
R.  V.  Frost  (Gurney,  766,  749),  247, 

259,  294. 
R.  V.  Fuller  (R.  &  R.  308),  72,  74,  97. 
R.  V.  Gardelle,  147. 
R.  V.  Gardner  (4  F.  &  F.  346),  116,  413. 
R.  V.  Geering  (27  L.  J.  M.  C.  215), 

67,  413. 
R.  V.  Genge,  473. 
R.  V.  GiU,  100,  111. 
R.  V.  Glenn,  244. 
R.  V.  Good.  147,  374. 
R.  V.  Gould,  206. 
R.  V.  Graham,  401,  415. 
R.  V.  Grant  (4  F.  &  F.  322).  46. 
R.  V.  Gray  (4  F.  &  F.  1102),  65. 
R.  V.  Green  (3  C.  &  K.  209),  71. 
R.  V.  Greenacre  (8  C.  &  P.  32),  147» 

471. 
R.  V.  Greenslade  (11  Cox  C.  C.  412), 

472. 
R.  V.  Grownall,  451. 
R.  V.  Guttridge  (9  C.  &  P.  471,)  299. 
R.  V.  Haggerty  (6  Cel.  Tr.  19),  130. 
R.  V.  Hagy  (2  C.  &  P.  458).  298. 
R.  V.  Haigh  (31  St.  Tr.  1122),  261,  274, 

275   276. 
R.  V.  Haines  (3  P.  &  F.  144\  183. 
R.  V.  Hall  (1  Cox  C.  C.  231),  71,  90. 
R.  V.  Handley(13  Cox  C.  C.  79),  449. 
R.  V.  Hanson,  338,  407. 
R.  V.  Harborns  (2  Ad.  &  E.),  234. 
R.  V.  Hardy,  275. 

R.  V.  Harmer  (3  Cox  C.  C.  487),  85. 
R.  V.  Harris  (4  F.  &  F.  342),  65. 
R.  V.  Harris,  260. 
R.  V.  Harvey  (2  B.  &  C.  257),  50. 
R.  V.  Hastings  (7  C.  &  P.  152),  459. 


522 


TABLE  OF  CASES. 


R.  V.  Hatfield  (27  St.  Tr.  1281).  49. 

R.  V.  Hawkins,  251. 

R.  V.  Hawkins  (10  East,  211),  236. 

R.  V.  Haworth  (4  C.  &  P.  234),  299. 

R.  V.  Hayes,  374. 

R.  V.  Heath,  187. 

R.  V,  Heaton  (1  Lew.  C.  C.  116),  198. 

R.  V.  Hearn  (1  Car.  &  M.  109),  116. 

R.  V.  Henley  (1  Cox  C.  C.  112),  370. 

R.  V.  Hewett,  89. 

R.  V.  Higgins  (3  C.  &  P.  603),  124. 

R.  V.  Hinley  (1  Cox  C.  C.  12),  73. 

R.  V.  Hobson  (1  Lew.  C.  C.  261),  337. 

R.  V.  Hodges,  187. 

R.  V.  Hodgkiss  (7  C.  &  P.  298),  266, 

306. 
R.  V.  Hodgson,  71. 
R.  V.  Holmes  (L.  R.  I.  C.  C.  334),  243. 
R.  V.  Holmes  (1  Car.  &  K.  248),  116. 
R.  V.  Holroyd  (4  Cel.  Tr.  167),  148. 
R.  V.  Holt  (8  Cox  C.  C.  411),  59. 
R.  V.  Hooper  (1  F.  &  F.  85),  359. 
R.  V.  Hopkins  (8  C.  &  P.  591),  371. 
R.  i).  Home,  299. 
R.  V.  Howell,  95. 
R.  V.  Hughes  (Cox  C.  C.  176),  84. 
R.  V.  Humphreys  (Swinton,  353),  225, 

327,  361,  381. 
R.  V.  Humphreys,  190. 
R.  V.  Hunter.  247,  276,  278. 
R.  V.  Hunter  (3  C.  &  P.  491),  299. 
R.  V.  Ings  (33  St.  Tr.  1135),  337,  407. 
R.  V.  Isaacs,  108. 
R.  V.  Jarvis,  116,  459. 
R.  V.  Jarvis  (25  L.  J.  M.  C.  30),  72. 
R.  V.  Jeffreys,  150,  186. 
R.  i\  Johnson.  221,  224. 
R.  V.  Jones  (2  Camp.  132),  459. 
R.  V.  Jones  (9  C.  &  P.  258),  53. 
R.  V.  Jones  (2  C.  &  P.  639),  123. 
R.  V.  Jones  (31  St.  Tr.  310),  265. 
R.  V.  Jones  (4  Cel.  Tr.  344),  127. 
R.  V.  Keogh,  260. 
R.  V.  Killan  (20  St.  Tr.   1085),   150, 

277. 
R.  V.  Kirkwood.  71. 
R.  V.  Kohl,  303. 

R.  V.  Langmead  (9  Cox  C.  C.  464),  95. 
R.  V.  Lawell,  111. 
R.  V.  Lawson,  385,  433. 
R.  V.  Layton,  158. 
R.  i).  Looker,  111,  256,  286,  472. 
R.  V.  Lord  Mayor  (5  Q.  B.  555),  471. 
R.  V.  McClarens(3Cox  C.  C.  425),  92, 

249. 
R.  V.  McDaniel,  244. 
R.  V.  McDougal,  374. 
R.  V.  McKechnie,  101,  209. 
R.  V.  McKinley  (33  St.  Tr.  506),  233. 
R.  V.  McNaghten  (10  CI.  &  F.  200), 

157,  319. 
R.  V.  Manning,  314,  326,  374, 462, 473. 
R.  V.  Mansfield  (14  Cox  C.  C.  639), 

92,  116. 


R.  V.  Manzano  (2  F.  &  F.  64),  98, 100, 

R.  V.  Markham,  180. 

R.  V.  Martin,  49,  71. 

R.  V.  May  (1  Cox  C.  C.  236),  413. 

R.  V.  Mazagora  (  R.  &  R.  C.  C.  291), 

50. 
R.  V.  Mellor  (31  St.  Tr.  1032),  274,  294. 
R.  V.  Melville  (29  St.  Tr.  1427),  139. 
R.  V.  Midland  Ry.  Co.  (20  L.  Mag. 

M.  C.  145),  140. 
R.  V.  Millward  (R.  &  R.  245),  71. 
R.  V.  Mockford(ll  CoxC.  C.  16),  358. 
R.  V.  Morgan  (1  Mon.  &  R.  134  n.), 

219. 
R.  V.  Mountford  (1  Moody's  C.  C.  441), 

188. 
R.  V.  Murphy  (8  C.  &  P,  306),  308. 
R.  V.  Nairn  (19  St.  Tr.  1284),  148, 250. 
R.  V,  Nation,  167. 
R.  V.  Newton,  158,  175. 
R.  V.  O'Coigley,  130. 
R.  V,  O'Kernan,  185. 
R.  V.  Oddy  (20  L.  J.  M.  C.  198),  58. 
R.  V.  Offord  (5  C.  &  P.  168),  49. 
R.  t'.  Okeman,  35,  150. 
R.  V.  Oliver  (1  Syme  Rep.  224),  185. 
R.  V.  Palayo,  190. 
R.  V.  Palmer,  59,  142,  146,  231,  247, 

389,  411,  428. 
R.  V.  Partridge  (7  C.  &  P.  551),  89. 
R.  V.  Patch  (Gurney,   171),  30,  147, 

148,  185,  230,  305. 
R.  V.  Pate,  158. 

R.  V.  Perrys  (14  St.  Tr.  1312),  362. 
R.  V.  Poolton  (5  C.  &  P.  399),  449. 
R.  V.  Reeve,  116, 
R.  V.  Reeves  (9  C.  &  P.  25),  449. 
R.  V.  Richards  (1  F.  &  F.  87),  154. 
R.  V.  Richardson  (2  F.  &  F.  343),  64, 

185.  204,  274,  486. 
R.  V.  Rickman,  97. 
R.  V.  Riley  (16  Cox  C.  C.  191),  243. 
R.  V.  Roberts  (1  Camp.  399),  63. 
R.  V.  Robinson,  151,  181. 
R.  V.  Roden  (12  Cox  C.  C.  630),  68. 
R.  V.  Roebuck  (25  L.  J.  M.  C.  51),  70. 
R.  r.  Rogan  (1  CoxC.  C.  291),  268. 
R.  V.  Rooke,  243,  250. 
R.  V.  Roper,  299. 
R.  V.  Ross,  369,  374. 
R.  V.  Rowton  (L.  &  C.  520),  263,  269. 
R.  V.  Rudge,  371. 
R.  V.  Rush,  225,  276,  469. 
R.  V.  Sawyer,  182. 
R.  V.  Scarfe  (20  L.  J.  M.  C.  229),  299. 
R.  V.  Schofield  (31  St.  Tr.  1061),  186, 

247,  274. 
R.  V.  Sellis  (7  C.  &  P.  856),  449. 
R.  V.  Shaw  (16  Cox  C.  C.  583),  198, 

240. 
R.  V.  Sheppard(R.  &  R.C.  C.  169),  50. 
R.  V.  Shrimpton  (8  G.  &  K.  273),  269. 
R.  V.  Simon  (10  St.  Tr.  680),  258. 
R.  V.  Simons  (6  C.  &  P.  540),  118. 


TABLE  OF  CASES. 


523 


R.  V.  Simpson,  451. 

R.  V.  Sissington  (1  Cox  C.  C.  48),  243. 

R.  V.  Slaney  (5  C.  &  P.  213),  213. 

R.  V.  Sleeman(l  Dear.  C.  C.  249),  116. 

R.  V.  Sniethurst,  152,  385,  388,  389. 

R.  V.  Smith  (2  C.  &  K.  217),  83. 

R.  V.  Smith,  231,  305,  407. 

R.  V.  Smith,  71. 

R.  V.  Smith  (27  L.  J.  M.  C.  204),  249. 

R.  V.  Smith,  30. 

R.  V.  Smith,  204,  305. 

R.  V.  Smithies  (3  C.  &  P.  332),  128. 

R.  V.  Spiggott,  204. 

R.  V.  Squires  (19  St.  Tr.  275),  243. 

R.  V.  Standard  (7  C.  &  P.  673),  262. 

R.  V.  Standsfield  (11  St.  Tr.  1408),  35. 

R.  V.  Stephens  (16  Cox.  C.  C.  387), 

64,  360. 
R.  V.  Steptoe  (4  C.  &  P.  397),  124. 
R.  V.  Stewart,  453. 
R.  V.  Stubbs  (7  Cox  C.  C.  48),  459. 
R.  V.  Sunderland  (1  Lewin,  102),  71. 
R.  V.  Taverner  (6  C.  &  P.  413),  71. 
R.  V.  Tawell,  69,  326,  358,  362,  412. 
R.  V.  Taylor  (5  Cox  C.  C.  138),  64. 
R.  V.  Taylor  (6  Cox  C.  C.  58),  215. 
R.  V.  Thomas,  146. 
R.  V.  Thornton,  111,  200,  231,  256,  274, 

333.  473. 
R.  V.  Thurtell,  258,  370,  478. 
R.  V.  Tippett,  117. 
R.  V.  Trannock,  21. 
R.  V.  Trilloe  (1  C.  &  M.  650),  449. 
R.  V.  Turner  (30  St.  Tr.  1132),  57. 
R.  V.  Twyning  (2  B.  &  Aid.  386),  235. 
R.  V.  Unkles  (8  Ir.  L.  T.  R.  38),  365. 
R.  V.  Upchurch  (1  Moo.  C.  C.  465), 

116. 
R.  V.  Varnham,  98. 
R.  V.  Vaughan,  314. 
R.  V.  Walford  (8  C.  &  P.  767),  471. 
R.  V.  Wall  (38  St.  Tr.  61),  299. 
R.  V.  Warrickshall  (1  Leach's  C.  C. 

299),  115. 
R.  V.  Warringham  (2  Den.  C.  C.  447), 

115. 
R.  V.  Watson  (2  Stark.  155),  338. 
R.  V.  Watson  (32  St.  Tr.  583),  294. 
R.  V.  Webster  (19  St.  Tr.  494),  206. 
R.  V.  Wescombe,  148,  251. 
R.  V.  Westron,  160. 
R.  V.  Whalley,  240. 
R.  V.  Whitby,  244. 
R.  V.  White,  117,  183. 
R.  V.  Whiting  (7  Car.  &  P.  771),  262. 
R.  V.  Whittle,  257. 
R.  V.  Wilks  (7  C.  &  P.  273),  459. 
R.  V.  Williams  (8  C.  &  P.  434),  222. 
R.  V.  Wilson,  125. 
R.  V.  Wilson,  84. 

R.  V.  Winslow  (8  Cox  C.  C.  397),  68. 
R.  V.  Wishart  (1  Syme's  Rep.  33), 

345. 
R.  V.  Wood  (5  Jurist,  225),  369. 


R.  V.  Wood  (28  St.  Tr.  819),  33,  180. 
R.  V.  Woodgate  (2  New  Zea.  Jur.  5), 

369. 
R.  V.  Wright  (9  C.  &  P.  754),  449. 
R.  V.  Yend  (6  C.  &  P.  176),  352. 
R.  V.  Yewin  (2  Camp.  368),  240. 
Rains  v.  State  (36  N.  E.  532),  311. 
Rainsbarger,  State  v.,  42,  46,  74,  77, 

265. 
Ramirely  v.  State  (30  Tex.  Cr.  App. 

133),  309. 
Randall  v.  State  (132  Ind.  539),  267. 
Rankin,  People  v.,  113. 
Rape  V.  Com.  (30  Ga.  60),  116. 
Ray  V.  Ray  (98  N,  C.  566),  160. 
Ray  V.  State  (80  Ala.  104),  119,  280, 

331 
Ray  V.  State  (13  Tex.  Cr.  App.  51), 

309. 
Rea  V.  State  (8  Lea,  356),  271,  272. 
Reagan  v.   U.   S.    (157  U.   S.   301), 

237. 
Reany,  People  v.,  268. 
Reardon  i\  State  (4  Tex.  Crim.  App. 

603),  192. 
Rector,  State  v.,  135. 
Rector  v.  Com.  (80  Ky.  468),  115. 
Red,  State  v.,  333. 
Redd  V.  State  (69  Ala.  255),  113. 
Reddick  v.  State  (25  Fla.  113),  269. 
Redding  v.  Wright  (49  Minn.  322), 

31. 
Redman  v.  State  (1  Blackf .  967),  265. 
Reed,  State  v.  (Kan.),  44,  61. 
Reed,  State  v.  (Vt),  243. 
Reed,  State  v.  (Mo.),  197. 
Reed  v.  People  (1  Park.  Crim.  Rep, 

481),  156. 
Reegan,  State  v.,  268. 
Reese,  State  r. ,  81. 
Reeves,  R.  v.,  116,  449. 
Reeves  v.  State  (29  Fla.  527),  326. 
Regan,  Com.  v.,  343. 
Regular  v.  State  (58  Ga.  264),  462. 
Reid,  Stater.,  335. 
Reid  V.  State  (30  Ga.  681),  211. 
Rcimbaur's  Case,  120. 
Reins  v.  People  (80  111.  256),  334. 
Remsen  v.  People  (43  N.  Y.  9),  230, 

262. 
Reno,  State  v.,  36. 
Renton,  State  v. .  266. 
Reynolds'  Case  (2  City  Hall  Rec), 

105. 
Reynolds  v.  Robinson  (64  N.  Y.  395), 

156. 
Reynolds  v.  State  (17  Tex.  Cr.  App. 

413),  310. 
Reynolds  v.  State  (16  So.   78),  87. 
Rhea  v.  State  (14  So.  853),  33G. 
Rhodes,  Stater.,  36. 
Richards,  R.  r.,  154. 
Richardson,  R.  v.,  64,  185,  204,  274, 

486. 


624 


TABLE  OF  CASES. 


Richardson  v.  Eureka  (96  Cal.  443), 

156. 
Richardson  v.  Green  (61  Fed.    Rep. 

423),  217. 
Richardson  v.    Newcomb  (21  Pick. 

315),  214,  218. 
Richart,  State  v.,  80,  83. 
Richman,  R.,  297. 
Ridley  v.  Ridley  (1  Cold.  323),  28. 
Riggs  V.  Powell  (142  111.  453),  217. 
Rights,  State  v. ,  90. 
Rigsby,  State  v.,  115,  116. 
Riley's  Case  (1  City  Hall  Rec.  23), 

259,  261. 
Riley,  R.  v.,  243. 
Riley  v.  State  (88  Ala.  193),  199,  281, 

302. 
Rippey  v.  Miller  (1  Jones'  L.  479), 

322. 
Roberts,  R.  v.,  63. 
Roberts,  State  v. ,  334. 
Roberts  v.  Gee  (15  Barb.  449),  124. 
Roberts  v.  Johnson  (58  N.  Y.  613), 

162. 
Roberts  v.  People  (9  Col.  458). 
Roberts  v.  State  (17  Tex.  Crim.  App. 

82),  80,  83,  84. 
Robertson  v.  State  (9  Tex.  Cr.  App. 

209),  460. 
Robinson,  Com.  v.,  62.  63,  396,  414. 
Robinson,  Com.  v.,  261. 
Robinson,  R.  v.,  151,  181. 
Robinson,  State  v.,  320. 
Robinson,  State  v.,  156,  356. 
Robinson  v.  Blen  (20  Ind.  109),  128. 
Robinson  Min.  Co.  v.  Craig  (4  N.  Y. 

St.  R.  478),  212. 
Robinson    v.   Randall   (82  111.   521), 

341. 
Robinson  v.  State  (12  Mo.  592),  117. 
Robinson  v.    State  (22  Tex.    Crim. 

App.  690,  see  facts),  91. 
Robson  V.  Rocke  (2  Add.  79),  222, 

203 

Rochester  v.  Chester  (3  N.  H.  349), 

152. 
Roden,  R.  v.,  68. 
Rodger  v.  Kay,  227. 
Rodman,  State  v.,  86,  141,  259. 
Roe,  State  v.,  8. 

Roe  V.  State  (25  Tex.  33),  42,  46,  109. 
Roebuck,  R.  v.,  70. 
Rogan,  R.  v.,  268. 
Rogers  v.  Tyley  (144  111.  652),  217. 
Romero,  U.  S.  v.,  336. 
Rooke,  R.  v.,  243,  250. 
Rooker  v.   Rooker  (12  AV.  R.  807), 

179. 
Root's  Adrar.    v.   Rite's  Admr.    (1 

Leigh,  216),  214. 
Roper,  R.  r.,  299. 
Rose  V.  Ft.  Nat'l  Bank  (91  Mo.  399), 

215,  216. 
Rosier,  State  v.,  142. 


Ross,  R.  v.,  369,  374. 

Ross  V.  State  (29  Tex.  50),  310. 

Rothschild  v.  Am.  Ins.  Co.  (62  Mo. 

356),  341. 
Roundenbush,  U.  S.  v.,  260. 
Rounds,  State  v. ,  330. 
Rover,  State  v.,  328. 
Rowell  V.  Fuller  (59  Vt.   688),  219, 

222. 
Rowton,  R.  v.,  263,  269. 
Rudge,  R.  v.,  371. 
Rudy  V.  Com.  (128  Pa.  St.  500).  295, 

317. 
Ruloflf  V.  People  (18  N.  Y.  179),  362, 

363. 
Rush,  R.  v.,  225,  276,  469. 
Rush,  State  v.,  131. 
Rusher  v.  State  (94  Ga.  363),  118. 
Russ  V.  Wabash  West  Ry.  Co.  (112 

Mo.  45),  158,  160,  161. 
Rutledge  v.  Carruthers,  184. 
Ryan,  State  v.,  306. 
Ryan  v.  People  (79  N.  Y.  594),  268. 
Ryan  v.  State  (83  Wis.  486),  97.  133, 

308,  328. 
Rye  V.  State  (8  Tex.   Cr.  App.   153), 

310. 

Sackett,  Com.  v.  270. 

Sahlinger  v.  People  (102  111.  241),  82. 

Salazer  v.  Taylor  (33  Pac.  369),  213. 

Sanders,  State  v.,  318, 

Sauer,  State  v. ,  262,  331. 

Sawyer,  R.  v.,  182. 

Scarf e,  R.  v.,  299. 

Schsefer  v.  State  (18  S.  E.  552),  117. 

Schaffer,  State  v.,  86,  131,  331. 

Schaifer,  State  v.,  319. 

Schaubert  v.  State  (28  Tex.   Crim. 

App.  222).  283. 
Schiller  v.  State  (14  Me.  502),  259. 
Schleagel,  State  v.,  264. 
Schloss  V.  Creditors  (31  Cal.  203),  3. 
Schneider  v.  Barney  (113  U.  S.  645), 

155. 
Schcenwald,  State  v.,  51,  300,  333. 
Schofield,  R.  v.,  186.  247,  274. 
Schoolcraft  v.  People  (117  111.  271), 

197,  479,  306. 
Schulsler  v.  State  (29  Ind.  394),  305. 
Schultz  V.  State  (16  Tex.  Crim.  App. 

144),  81. 
Schultz  V.  State  (20  Tex.  Crim.  App. 

308),  81,  298. 
Scott,  Com.  v.,  63,  187,  456. 
Scott,  State  v.,  215,  216. 
Scott  V.  Home  Ins.  Co.  (1  Dill.  105), 

341. 
Scott  V.  State  (16  So.  925),  260. 
Scott  V.  State  (19  Tex.  Crim.  App. 

325),  281. 
Scroggins    v.     Scroggins    (Wright, 

212),  349. 
Sego,  Com.  v.,  116. 


TABLE  OF  CASES. 


525 


Sellis,  R.  i\,  449. 

Senn,  Stater.,  332. 

Shaeflfer,  Stater..  330. 

Shafner  v.  Com.  (72  Pa.  St.  60),  58,  63. 

Shannon  r.  State  (57  Ga.  482),  196. 

Sharp  r.  State  (17  Tex.  Cr.  App.  486), 

309. 
Shaw,  R.  r.,  198,  240. 
Shaw  r.  State,  42,  44. 
Sheenan,  Com.  r.,  114. 
Sheenan  r.  People  (131  111.  22),  271. 
Shepard,  Com.  v.,  64. 
Shepherd  r.  State  (10  So.  663),  186. 
Shepherd  r.  State  (44  Ark.  39),  88, 91. 
Sheppard,  R.  r.,  50. 
Sheppard  r.  State  (17  Tex.  Cr.  App. 

74),  452. 
Shettleworth,  State  v.,  328. 
Shipp  V.  Com.  (11  S.  E,  1065),  281. 
Shorb  V.  Kinzie  (80  Ind.  580),  218. 
Shriedley  v.  Stat«  (23  Ohio  St.  130) , 

72. 
Slirimpton,  R.  r.,269. 
Shropshire  r.  State  (81  Ga.  589),  262. 
Shiyver,  Stater.,  318. 
Shultz  r.  State  (13  Tex.  401),  334. 
Siberry  r.  State  (133  Ind.  677),  325, 

330   331 
Siebert'r.  People  (143  III.  571),  42,  44, 

333 
Simmons  r.  State  (95  Ga.  224),  309. 
Simmons  r.  State  (61  Miss.  243),  272. 
Simms  v.  State  (10  Tex.  Crim.  App. 

131).  179. 
Simon,  R.  r.,  258. 
Simons,  R.  r.,  118. 
Simpson,  R.  v.,  451. 
Simpson,  State  v.,  95. 
Simpson  r.  State  (1  Ala.  L.  J.  239), 

269. 
Sims  r.  State  (14  So.  560),  330. 
Sissington,  R.  r.,  243. 
Slade  r.  State  (29  Tex.  Crim.  App. 

381),  55. 
Slaney,  R.  v.,  213. 
Slatterly  r.  People  (76  111.  217),  128. 
Slavers,  The.     See  Coggeshall  v.  U, 

S.,  463. 
Sleeman,  R.  v.,  116. 
Slingerland,  State  r.,  263,  306. 
Smethurst,  R.  v.,  152,  385,  388,  389. 
Smith's  Case.     See  R.  r.  Smith. 
Smith,  Varnham  &  Timms'  Case,  492. 
Smith,  Com.  r.,  373. 
Smith  (Madeline),  R.  r. ,  231, 405, 407. 
Smith,  R.  r.,  71. 
Smith,  R.  v.,  249. 
Smith,  R.  v.,  30. 
Smith,  R.  v.,  83. 
Smith,  Stater.,  330. 
Smith,  Stater.,  336. 
Smith,  State  v.,  270. 
Smith,  U.  S.  v.,  261. 
Smith  r.  Com.  (10  Grat.  734),  116. 


Smith  r.  Com.  (21  Grat.  800),  345, 

354,  362. 
Smith  r.  Com.  (86  Ky.),  56. 
Smith   V.    Ferrers,   225. 
Smith  r.  Hickenbotham  (57  la.  733), 

158. 
Smith  r.  People  (103  111.  82),  82. 
Smith  r.  Sainsbury  (5  C.  &  P.  196  ; 

24  E.  C.  L.  R.).  213. 
Smith  V.  State  (58  Ind.  341),  79. 
Snell,  Stater.,  87. 
Snell  r.  Bray  (56  Wis.  156),  213. 
Snowden  r.  State  (62  Miss.   100),  79, 

88 
Solita  r.  Yarrow  (1  Moo.  &  R.  133), 

214,  215. 
Sorter,  Stater.,  263. 
Sparf  r.  U.  S.  (156  U.  S.  51),  114. 
Sparks  r.  Com.  (89  Ky.  644),  254. 
Spencer,  State  v.,  319. 
Spies  r.  People  (122  111.  1),  268. 
Spiggott,  R.  v.,  204. 
Spoof  r.  U.  S.  (156  U.  S.  51),  128. 
Spooner's   Case  (2   Chandler's  Am. 

Crim.  Tr.),  200. 
Spottiswood  r.    Weis  (66  Cal.  525), 

219 
Springer  r.  Hall  (83  Mo.  693),  211, 215. 
Squires,  R.  v..  243. 
Squires,  State  v.,  116. 
St.  Clair  r.  U.  S.  (154  U.  S.  124),  367. 
Standard.  R.  v.,  262. 
Standsfield,  R.  r.,  35. 
State  r.  Ah  Chuey  (14  Nev.  79),  191, 

354,  377. 
State  r.  Ah  Kung  (17  Nev.  361),  302. 
State  r.  Alexander  (66  Mo.  148),  262. 
State  r.  Allen  (103  N.  C.  433),  306. 
State  r.  Alphonse  (34  La.  Ann.  9), 

113. 
State  r.  Anderson  (10  Ore.  448),  155, 

160. 
State  r.  Arnold  (12  la.  479),  81. 
State  r.  Austin  (108  N.  C.  780),  267. 
State  r.  Babb  (76  Mo.  501),  96. 
State  r.  Baden  (42  La.  Ann.  295),  142. 
State  r.  Bailey  (94  Mo.  311),  254. 
State  r.  Baker  (23  Ore.  441).  67. 
State  r.  Baldwin  (36  Kan.  1).  409. 
State  r.  Banks  (43  la.  595),  233. 
State  r.  Barker  (64  Mo.  282),  103. 
State  r.  Barrow  (31    La.  Ann.  691), 

216. 
State  r.  Barth  (25  S.  C.  175).  260. 
State  r.  Bartlett  (43  N.  H.  224),  319. 
State  r.  Beaslev  (50  N.  W.  570).  275. 
Stater.  Beatty  (90  Mo.  142),  82,  103. 
State  r.  Beebe  (17  Mmn.  241),  259. 
State  r.  Best  (15  S.  E.  930),  394. 
State  r.  Betsall  (11  W.  Va.  703),  459. 
State  r.  Bloom  (68  Ind.  54).  262,  263. 
State  V.  Blunt  (59  la.  648),  272. 
State  V.  Blunt  (91  Mo.  503),  330. 
State  V.  Bodekee  (34  la.  520),  380. 


526 


TABLE  OF  CASES. 


State  V.  Bonin  (34  Mo.  537),  87. 
State  V.  Bowman  (80  N.  Y.  432),  128. 
State  V.  Bowman  (98  N.  C.  509),  156. 
State  V.  Bradley  (64  Vt.  466),  56. 
State  V.  Brewster  (7  Vt.  118),  92. 
State  V.  Brockman  (46  Mo.  566),  116. 
State  V.  Brown  (48  la.  382),  115, 
State  V.  Brown  (75  Mo.  317),  82. 
State  V.  Bruce  (48  la.  533),  320. 
State  V.  Buckley  (60  la.  471).  102. 
State  V,  Bulla  (89  Mo.  595),  82. 
State  V.  Bullard  (100  N.  C.  486),  267. 
State  V.  Bush  (122  Ind.  42),  281,  324. 
State  V.  Butterfield  (75  Mo.  297),  82. 
State  V.  Campbell,  56. 
State  V.  Carson  (20  S.  E.  324),  306. 
State  V.  Caster  (93  Mo.  242),  87,  88,  90. 
State  V.  Chambers  (45  La.  Ann.),  179. 
State  V.  Chee  Gong  (16  Ore.  534),  272, 

295. 
State  V.  Child  (40  Kan.  482),  318. 
State  V.  Clark  (54  N.  H.  456),  218. 
State  V.  Clawson  (32  Mo.  App.  93),  68. 
State  V.  Clayton  (100  Mo.  526),  326. 
State  V.  ChingLing(16  0re.  419),  331. 
State  V.  Clements  (47  La.  Ann.  1088), 

296. 
State  V.  Clinton  (67  Mo.  380),  215. 
State  V.  Clouser  (69  la.  313),  300. 
State  V.  Cole  (63  la.  695),  U. 
State  V.  Cole  (94  N.  C.  958),  156,  163. 
State  V.  Coleman  (22  La.  Ann.  455), 

306. 
State  V.  Coleman  (20  S.  C.  441),  158, 

332 
State  v'.  Collins  (20  la.  85),  277. 
State  V.  Cook  (17  Kan.  392),  384. 
State  V.  Cordelli  (19  Mo.    319),    354, 

360. 
State  V.  Cousins  (50  la.  250),  142. 
State  V.  Covington  (2  Bail.  569),  123. 
State  V.  Crabtree  (111  Mo.  136),  55. 
State  V.  Cramer  (40  Pac.  944),  191. 
State  V.  Crank  (75  Mo.  406),  87. 
State  V.  Crawford  (11  Kan.  32),  320. 
State  V.  Crawford  (34  Mo.  200),  324, 

326. 
State  V.  Creson  (38  Mo.  372),  80,  265. 
State  V.  Cunningham  (100  Mo.  525), 

241. 
State  V.  Dalton  (27  Mo.  12),  363,  265. 
State  V,  Daley  (41  Vt.  564),  300. 
State  V.  Daly  (37  La.  Ann.  576),  81,  83. 
State  V.    Davenport  (7   S.    E.    37), 

302. 
State  V.  Davidson  (30  Vt.  377),  246, 

361. 
State  V.  Davis  (73  Mo.  129),  103. 
State  V.  Davis  (80  Mo.  53),  75. 
State  V.  Davly  (53  Vt.  442),  263. 
State  V.  De  Ranee  (34  La.  Ann.  186), 

395. 
State  t'.' Dickson  (78  Mo.  438),  54,  147. 

183.  354. 


State  V. 

333. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

184. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

330, 
State  V. 

303. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V, 
State  V. 
State  V, 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

115, 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V, 

395, 
State  V. 
State  V. 
State  v. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


Dill  (18  Atl.  763),  49, 331,  332, 

Dimitt  (88  la.  551),  377. 
Dineen  (10  Minn.  416),  338. 
Dockstader  (43  la.  436),  370. 
Donahoe  (78  Iowa,  486),  381. 
Donohoe  (33  W.  Va.  761),  865. 
Donovan  (61  la.  378),  263. 
Donovan  (36  S.  W.  340),  86. 
Douglass  (44  Kan.  618),  363. 
Edwards  (13  S.  C.  30),  860. 
Edwards  (19  S.  W.  91),  87. 
Ell  wood  (17  R.  I.  763),  131, 

Elsham  (70  la.  531),  327. 
Emery  (59  Vt.  84),  263,  265. 
En  (10  Nev.  277),  81,  85. 
Evans  (33  W.  Va.  417),  252. 
Evans  (53  Mo.  460),  330. 
Ezekiel  (33  S.  C.  115),  221. 
Fairlamb(13  Mo.  137),  133. 
Felter  (35  la.  67),  156. 
Ferris  (138  Mo.  447),  191. 
Fitzgerald  (80  Mo.  App.  408), 

Flanagan  (36  W.  Va.  116), 

Floyd  (15  Mo.  349),  88. 
Folwell  (14  Kan.  105),  60,  346. 
Ford  (3  Strobh.  517),  56. 
Ford  (31  Wis.  610),  325. 
Forshner  (43  N.  H.  89),  243. 
Fortner  (43  la.  494),  113. 
Freeman  (1  Speers,  57),  113. 
Frank  (5  Jones  L.  384),  307. 
Fritz  (23  La.  Ann.  55),  816. 
Furlong  (19  Me.  825),  78,  209. 
Gardner  (Wr.  293),  118. 
Garret  (71  N.  C.  85),  149. 
Gay  (94  N.  C.  814),  212. 
Gedicke  (43  N.  J.  L.  86),  164. 
Gee  (92  N.  C.  756),  306. 
German  (54  Mo.  526),  117. 
Gibbs  (10  Mont.  213),  335. 
Ginger  (80  la.  577).  160. 
Glass  (5  Ore.  73),  281,  306. 
Gooch(94N.  C.  987),  41. 
Gorham,  (31  Atl.  845),  114, 
124. 

Graham  (65  la.  617),  108. 
Graham  (74  N.  C.  646),  199. 
Grant  (79  Mo.  113),  54,  56. 
Grant  (9  Shep.  171),  113. 
Gray  (37  Mo.  463),  83,  87. 
Grear  (89  Minn.  281),  117, 

Grebe  (17  Kan.  458),  141, 197. 
Griffin  (87  Mo.  608),  131. 
Grout  (33  Me.  171),  113. 
Gustafson  (50  la.  194),  260. 
Hale  (13  Ore.  352),  80. 
Halleck  (65  Wis.  147),  66. 
Hansen  (36  Pac.  296),  296. 
Harman  (3  Harr.  567),  113. 


TABLE  OF  CASES. 


527 


state  V.  Harrigan  9  Houst.  369).  296. 
State  V.  Hartley  (40  Pac.  372),  296. 
Steve  V.  Hastings  (53  N.  H.  452),  218, 

219 
State  r.Hayden  (45  la.  11).  334. 
State  V.  Heed  (57  Mo.  252),  330. 
State  V.  Henrick  (62  la.  414).  295. 
State  V.  Henry  (50  N.  C.  65),  260. 
State  V.  Hodge  (50  N.  H.  510),  80, 

88 
State  V.  Hogard  (12  Minn.  293),  306. 
State  V.  Holden  (42  Minn.  350),  99, 

109,  377. 
State  V.    Hollenscheit  (61  Mo.  302), 

124. 
State  V.  Hopkins  (50  Vt.  316),  218. 
State  V.  Horning  (49  la.  153),  260. 
State  V.  Houston  (1  Bail.  300),  72. 
State  V.  Howard  (118  Mo.  127),  183. 
State  V.  Howell  (100  Mo.  628),  262, 

317. 
State  V.  Hoyt  (46  Conn.  330),  56. 
State  r.  Hughes  (29  La.   Ann,  514), 

123 
State V  Humanson  (32  Pac.  Ill),  85. 
States.  Hunter  (50  Kan.  302),  302, 

354. 
State  V.  Ingram  (16  Kan.  14),  80,  102, 

104. 
State  V.  Jackson  (95  Mo.  623),  133. 
State  V.  Jacobs  (5  Jones,  259),  190. 
State  V.  Jefferson  43  La.  Am.  995), 

330. 
State  V.  Jennet  (88  N.  C.  665).  95. 
State  V.  Jenkins  (2  Tyl.  379),  81.  83. 
State  V.  Jennings  (81  Mo.  185),  82, 317. 
State  V.  Jerome  (33  Com.  265).  267. 
State  V.  Johnson  (19  la.  230),  195,  300. 
State  V.  Johnson  (37  Minn.  493),  333. 
State  V.  Johnson  (60  N.  C.  152),  270. 
State  V.  Johnson  (1  Winst.  151),  84, 

92,  270. 
State  V.  Jones  (19  Nev.  365),  336. 
State  V.  Jones  (3  S.  E.  507),  42,  44. 
State  V.  Jordan  (69  la.  506),  85,  87. 
State  V.  Kabrick  (39  La.  277),  270. 
State  V.  Kearley  (26  Kan.  77),  326. 
State  V.  Keddick  (7  Kan.  143).  320. 
State  V.  Keeler  (28  la.  551).  352,  354. 
State  V.  Kelly  (73  Mo.  608).  79,  87. 
State  V.  Kelly  (57  la.  644),  80,  87. 
State  V.  Kelly  (27  Atl.  203),  61. 
State  V.  Kelly  (9  Mo.  App.  512),  79. 
State  V.  Kennedy  (88  Mo.  341),  82. 
State  V.  Kennedy  (77  la.  208),  42,  44, 

82. 
State  V.  Kent  (65  N.  C.  311).  101,  209. 
State  V.  Kepper  (65  la.  745),  37. 
State  V.  Kilgore  (70  Mo.  546).  263. 
State  V.  King  (1  Mo.  App.  438).  319. 
State  V.  King  (78  Mo.  558),  137,  265. 
State  V.  King  (47  La.  Ann.  28).  252. 
State  V.  Kinney  (43  la.  294),  259. 
State  V.  Klinger  (43  Mo.  127),  319. 

3 


State  V.  Knapp  (45  N.  H.  148),  243. 
State  V.  Knights  (43  Me.  11),  167. 
State  V.  Knowles  (48  la.  598),  117. 
State  V.  Lackin  (11  Nev.  314),  41. 
State  V.  LaPage  (57  N.  H.  245),  58, 
State  v.  Lawler  (28  Minn.  216),  43. 
State  V.  Lawrence  (57  Me.  574),  319, 
State  V.  Laxton  (76  N,  C.  216).  269. 
State  V.  Lcabo  (89  Mo.  247),  481. 
State  V.  Lee  (22  Minn.  407).  264, 
State  V.  Leeper  (78  Mo.  470),  330. 
State  r.  Leppere  (66  Wis.  355),  263. 
State  V.  Lewis  (80  Mo.  110),  69. 
State  V.  Lindley  (51  la.  343),  260. 
State  V.  Long  (1  Hayw.  455).  117. 
State  V.  Longborne  (66  N.  C.  538),  116. 
State  V.  Loveless  (17  Nev.  424),  360. 
State  V.  Lull  (37  Me.  246),  102. 
State  V.  McAllister  (24  Me.  139),  270. 
State  V.  McCaliill  (72  la.  Ill),  55. 
State  V.  McDonald  (73  N.  C.  346),  122. 
State  V.  McGinnis  (6  Nev.  109),  259. 
State  V.  McLain,  318. 
State  V.  McMurphy  (52  Mo.  251),  263. 
State  V.  McNally  (87  Mo.  644),  262. 
State  V.  Madigan  (57  Minn.  425),  61. 
State  V.  Mahan  (32  Vt.  241),  124. 
State  V.  Mahn  (25  Kan.  186),  321. 
State  V.  Maier  (36  W.  Va.  757),  170. 
State  V.  Mallon  (75  Mo.  355),  137. 
State  r.  Mambrick  (65  la.  614),  200. 
State  V.  Manchester  (46  la.  88),  320. 
State  V.  Manluff  (1  Houst,  Crim.  R. 

209),  259. 
State  V.  Marion  (35  N.  H.  22),  349. 
State  V.  Mathews  (66  N.  C.  106),  115. 
State  V.  Matthews  (66  N.  C.  106).  300. 
State  V.  Maxwell  (42  la.  208),  52,  302. 
State  V.  Merrick  (19  Me.  398),  82. 
State  r.  Merrill  (13  N.  C.  269),  265. 
State  V.  Merrhnan(34S.  C.  576),  267. 
State  V.  Millain  (3  Nev.  481),  328. 
State  V.  Miller  (9  Houst.  564),  122, 

124,  105,  168,  237,  249,  300,  362. 
State  V.  Miller  (65  la.  60.) 
State  V.  Milling  (35  S.  C.  16),  303. 
State  V.  Moelchen  (53  la.  310),  44. 
State  V.  Moody  (50  la.  443),  133,  137. 
State  V.   Moore  (22  S.  W.  1086),  96, 

118. 
State  V.  Morey  (36  Pac.  373),  331. 
State  V.  ]Morgan  (95  N.  C.  641),  452. 
State  V.  Morris  (84  N.  C.  756),  198, 

199. 
State  V.  Moultrie  (33  La.  Ann.  1146), 

95. 
State  v.  Moxley  (102  Mo.  374),  42, 

44,  301. 
State  V.  Munco  (12  La.  Ann.    625), 

52. 
State  V.  Murray  (63  N.  C.  31),  243. 
State  V.  Muslein  (25  Mo.  Ill),  330. 
State  V.  Nash  (7  la.  347),  326. 
State  V.  Nelson  (11  Nev.  334),  336. 


528 


TABLE  OF  CASES. 


State  V.  Nelson  (118  Mo.  124),  265. 
State  V.  North  (95  Mo.  616),  87. 
State  V.  Northup  (48  la.  588),  260. 
State  V.  Norwood  (74  N.  C.  247),  306. 
State  V.  O'Connor  (31  Mo.  389),  260. 
State  V.  O'Neal  (29  N.  C.  251),  270. 
State  V.  Ober  (52  N.  H.  459),  268. 
State  V.  Ormiston  (66  la.  143),  261. 
State  V.  Orr  (64  Mo.  339),  303. 
State  V.  Oscar  (52  N.  C.  305),  328, 

333 
State  v'.  Ostrander  (18  la.  458).  326. 
State  V.  Outerbridge  (82  N.  C.  617), 

189. 
State  V.  Owen  (73  Mo.  440).  219. 
State  V.  Owens  (79  Mo.  619),  96,  103. 
State  V.  Palmer  (65  N.  H.  216),  43, 

133,  137. 
State  V.  Parsons    (39  W.  Va.  464), 

354. 
State  V.  Patterson  (73  Mo.  695),  115. 
State  V.  Patza  (3  La.  Ann.  513),  69. 
State  V.  Paulk  (18  S.  C.  514),  295. 
State  V.  Paxton  (126  Mo.  500),  301. 
State  V.  Payton  (90  Mo.  230),  330. 
State  V.  Pearce  (15  Nev.  188),  265. 
State  V.  Phelps  (11  Vt.  116).  113. 
State  V.  Phelps  (59  N.  W.  471),  61. 
State  V.  Phelps  (91  Mo.  478),  103,  113. 
State  V.  Phillips  (24  Mo.  457),  135. 
State  V.  Phillips  (91  Mo.  478),  92. 
State  V.  Pierce  (21  Md.  448),  333. 
.  State  V.  Place  (32  Pac.  736),  69. 
State  V.  Porter  (64  la.  237),  332. 
State  V.  Porter  (45  La.  Ann.),  69. 
State  V.  Posey  (4  Strobh,  142),  42,  43. 
State  V.  Potter  (18  Conn,  166),  113. 
State  V.    Potts  (20    Nev.  398),  329, 

331 
State'  V.   Pratt  (88  N.  C.  639),   122, 

123. 
State  V.  Price  (41  Pac.  1001),  296. 
State  V.  Rainsbarger  (71  Iowa,  746), 

42,  46,  74,  77,  265. 
State  V.  Rector  (120  Mo.  635).  135. 
State  V.  Red  (53  la.  69),  332. 
State  V.  Reed  (53  Kan.  767).  44,  61. 
State  V.  Reed  (39  Vt.  417),  243. 
State  V.  Reed  (89  Mo.  168),  197. 
State  V.  Reegan  (5  Mo.  App.  592), 

268. 
State  V.  Reese  (27  W.  Va.  375),  81. 
State  V.  Reid  (62  Me.  129),  335. 
State  V.  Reno  (67  Id.  587),  36. 
State  V.  Renton  (18  N.  H.   169),  266. 
State  V.  Rhodes  (15  S.  E.  1038),  36. 
State  V.  Richart  (57  la.  245),  80,  83. 
State  V.  Rights  (82  N.  C.  675),  90. 
State  V.  Rigsby(6  Lea,  554),  115, 116. 
State  V.  Roberts  (15  Ore.  157),  334. 
State  V.  Robinson  (20  W.  Va.  727), 

320. 
State  V.  Robinson  (117  Mo.  649),  156, 

356, 


State  V.  Rodman  (62  la.  456),  86,  141, 
259 

State  v'.  Roe  (12  Vt.  93),  8. 
State  V.  Rosier  (55  la.  517),  142. 
State  V.  Rounds  (76  Me.  123),  330. 
State  V.  Rover  (11  Nev.  343),  328. 
State  V.  Rush  (95  Mo.  199),  131. 
State  V.  Ryan  (12  Mont.  397),  306. 
State  V.  Sanders  (106  Mo.  188),  318. 
State  V.   Sauer  (38  Minn.  438),  263, 

331. 
State  V.  SchEefer  (116  Mo.  96).  319. 
State  V.  Schaffer  (70  la.  371),  86,  131, 

331. 
State  V.  Schleagel  (50  Kan.  326),  264. 
State  V.  Sclioenwald  (31  Mo.  147),  51, 

300,  333. 
State  V.  Scott  (45  Mo.  302),  215,  216. 
State  V.  Senn  (32  S.  C.  392),  332. 
State  V.  Shaefifer  (89  Mo.  271),  330. 
State  V.  Shettleworth  (18  Minn.  208), 

328. 
State  u.  Shroyer  (104  Mo.  441),  318. 
State  V.   Slingerland  (19  Nev.    135), 

263,  306. 
State  V.  Smith  (21  Mo.  App.    595), 

330. 
State  V.  Smith  31  Atl.  206),  336. 
State  V.  Smith  (50  Kan.  69),  270. 
State  V.  Snell  (46  Wis.  524),  87. 
State  V.  Sorter  (52  Kans.  531),  263. 
State  V.  Stimson  (45  Me.  608),  95. 
State  V.  Spencer  (1  Zab.  197),  319. 
State  V.  Squires  (48  N.  H.  364),  116. 
State  V.  Stanley  (48  la.  221),  460. 
State  V.  Stebbins  (29  Com.  463),  459. 
State  V.  Sterrett  (68  la.  76),  266. 
State  V.  Sterrett  (71  la.  386),  269. 
State  V.  Stewart  (47  La.  Ann. ), 

252. 
State  V.  Stevens  (67  la.  557),  133. 
State  V.  Stice  (88  la.  27),  66. 
State  I'.  Stickley  (41  la.  332),  154. 
State  V.  Streeter  (20  Nev.  403),  331. 
State  V.  Summers    (97  N.  C.  702), 

255. 
State  v' Talmage  (107  Nev.  543),  830. 
State  V.  Tatro  (50  Vt.  483),  115. 
State  r.  Taylor  (111  Mo.  538),  301, 

310. 
State  V.  Taylor  (117  Mo.  181),  133. 
State  v.  Taylor  (118  Mo.  153),  295. 
State  V.  Taylor  (20  S.  W.  339),  90. 
State  V.  Teeter  (69  la.  717),  52. 
State  V.  Terrell  (12  Rich  L.  321),  164. 
State  V.  Thomas  (12  S.  W.  663).  193. 
State  V.  Thomas  (6  Law  Rep.  64),  28. 
State  V.  Thompson  (80  Me.  194),  218, 

219 
State  V.  Tippet  (63  N.  W.  448),  191. 
State  V.  Tozier  (49  Me.  404).  270. 
State  V.  Turner  (110  Mo.  196),  330. 
State  V.  Underwood  (76  Mo.  630),  263. 
State  V.  Upham  (38  Me.  261),  270. 


TABLE  OF  CASES. 


529 


State  V.  VaUey  (47  La.   Ann.  182), 

253. 
State  V.  Van  Winkle  (6  Nebr.  344), 

30. 
State  V.  Van  Winkle  (80  Ta.  15),  92. 
State  V.  Vatter  (71  la.  557).  97. 
State  V.  Walker  (84  Vt.  296),  116. 
State  V.  Walker  (41  la.  217),  90. 
State  V.  Wallace  (9  N.  H.  515),  62. 
State  V.  Ward  (49  Conn.  539),  72. 
State  V.  Ward  (39  Vt.  153),  151,  317. 
State  V.  Ward  (61  Vt.  225),  218. 
State  V.  Ward  (23  la.  532),  270. 
State  V.  Warford  (15  S.  W.  886),  90, 

96. 
State  V.   Waterman    (1   Nev.   543), 

295,  317. 
State  V.  Watkins  (9  Conn.  47),  42, 

45,  62. 
State  V.  Watt  (47  La.  Ann.),  114. 
State  V.  Wells  (1  N.  J.  L.  424),  261. 
Stat6  V.  Wheeler  (79  Mo.  366) ,  96. 
State  V.  White  (89  N.   C.   462),  88, 

463. 
State  V.  White  (35  Mo.  500),  243. 
State  V.  Wliitten  (13  S.  W.  871),  241. 
State  V.  Wilkins  (28  Atl.  323),  132. 
State  V.  WilUams  (9  Ired.  140),  88, 

89  90 
State  V.  Williams  (40  La.  Ann.  168), 

254. 
State  V.  Williams  (27  Vt.  724),  144. 
State  V,  Williams  (7  Jones  L.  446), 

377. 
State  V.  Williams  (43  Tex.  182),  132. 
State  V.  Willingham   (33  La.    Ann. 

537),  301. 
State  V.  Wings  (66  Mo.  181),  293. 
State  V.  Winner  (17  Kan.  298),  354. 
State  V.  Wisdom  (24  S.   W.   1047), 

237 
State  V.   Witham  (72  Me.  531),  62, 

180. 
State  V.  Wohlman  (34  Mo.  482),  93. 
State  V.  Wolif  (15  Mo.  168),  88,  91. 
State  V.  Wood  (53  N.  H.  484),  164. 
State  V.  Woodard  (50  N.  W.  885),  52. 
State  V.  Woolard  (111  Mo.  248),  317. 
State  V.  Zimmerman  (47  Kan.  248), 

218. 
Stalker  v.  State  (9  Conn.  341),  71. 
Stanley,  State  v. ,  460. 
Stebbins,  State  v. ,  459. 
Stephen  v.  State  (11  Ga.  225),  113. 
Stephens,  R.  v.,  64,  360. 
Stephens  v.  People  (4  Park.   Crim. 

Rep.  396),  262. 
Sterrett,  Stater.,  260. 
Sterrett,  States.,  266. 
Steptoe,  R.  v.,  124. 
Stevens,  State  v.,  133. 
Stevenson  v.  Marony  (29  111.    532), 

291. 
Stewart,  R.  v.,  453. 


Stewart,  Stater.,  252. 

Stewart  v.  State  (22  Ohio  St.  477), 

260. 
Stice,  Stater.,  66. 
Stine,  Com.  r.,  71. 
Stocking  r.  State  (7  Ind.  326),  367. 
Sticklev,  State  v.,  154. 
Stokes  r.  State  (58  Miss.  677),  79,  99. 
Stokes  V.  U.  S.  (157  U.  S.  187),  2ief, 

217. 
Stone  r.  State  (12  Tex.  Crim.  Ai^ 

219)    198. 
Stone  r.' State  (17  So.  114),  114,  249. 
Stoppert  r.   Nierle  (63  N.  W.    382), 

238 
Stout  r.  State  (90  Ind.  1),  302. 
Stover  r.  People  (56  N.  Y.  315),  262. 
Strader  v.  MuUane  (17  Ohio  St.  624), 

340. 
Stranathan  r.  Greaves  (26  Ohio  St. 

2),  243. 
Stranger  r.  Serle  (1  Esp.  14),  211. 
Streeter,  Stater.,  331. 
Stringfellow  r.  State  (26  Miss.  157), 

117. 
Sti-other  r.  Lucas  (9  Pet.  763),  215. 
Struggle,  The,  r.  U.  S.  (9Cranch,  71), 

28. 
Stuart  r.  People  (42  Mich.  255),  97, 

318. 
Stubbs,  R.  r.,  459. 

Sturm  r.  Chalfant  (18  S.  E.  451),  32. 
SuUivan  r.  People  (31  Mich.  1),  318. 
Sullivan  r.  State  (18  Tex.  Crim.  App. 

623),  81. 
Summers,  State  r. ,  265/- 
Sumner  r.  State  (5  Blackf.  679),  281, 

301,  302.  307. 
Sunderland,  R.  r.,  71. 

Talmage,  State  r.,  330. 

Tatro,  Stater.,  115. 

Tavemer,  R.  r.,  71. 

Tawell,  R.  r.,  69,  111,  326,  358;  363, 

393,  412. 
Taylor,  R.  r.,  64,  215. 
Taylor,  Stater.,  301,  310. 
Taylor,  State  r.,  132. 
Taylor,  State  v.,  295. 
Taylor,  Stater.,  90. 
Tavlorr.  Com,  (42  Leg.  Int.  193),  191. 
Taylor  r.  Com.  (90  Va.  109),  135, 189. 
Taylor  r.  Riggs  (1  Pet.  596),  297. 
Taylor  r.  State  (3  Tex.  Cr.  App.  169), 

307,  374,  375. 
Taylor  r.  State  (9  Tex.  Cr.  App.  100), 

280,  334. 
Taylor  r.  Tavlor  (0  Eecl.  &  Mar.  Cas. 

563),  458'. 
Teeter,  State  r. ,  52. 
Terrell,  Stater.,  164. 
Terrigan,  Com.  r.,  62. 
Terr.  v.  Bannigan  (1  Dak.  451),  328. 
Terr.  r.  Bryson  (9  Mont.  32),  131. 


530 


TABLE  OF  CASES. 


Terr.  v.  Campbell  (9  Mont.  16),  253. 
Terr.  v.  Chavely  (30  Pac.  903).  325. 
Terr.  v.  Egan  (3  Dak.  119),  31,  191. 
Terr.  v.  Keen  (1  Wash.  Terr.  183),  262. 
Terr.  v.  McClin  (1  Mont.  394),  115, 

117. 
Terr.  v.  Neligh  (10  Pac.  367),  460. 
Terr.  v.  Roberts  (9  Mont.  12),  57. 
Terr.  v.  Trujillo  (32  Pac.  154),  316. 
Thomas  v.  Herlacker  (1  Dall.  14),  215. 
Thomas,  R.  v.,  146. 
Thomas,  States.,  193. 
Thomas,  State  v.,  28. 
Thomas  v.  State  (13  Tex.  Crim.  App. 

493),  109,  309. 
Thomas  v.  State  (59  Ga.  784),  220. 
Thomas  v.  State  (67  Ga.  460),   193, 

362,  370,  381. 
Thomas  v.  State  (103  Ind.  417),  61,  70, 

212,  218. 
Thompson,  State  v.,  218,  219. 
Thompson  v.  Com.  (20Grat.  724),  116. 
Thompson  v.  State  (14  So.  878),  266. 
Thompson  v.  State  (30  Tex.  356),  201. 
Thornton,  R.  v.,  Ill,  200,  231,  256, 

274,  322,  472. 
Thorpe  v.  Gilburne  (2  C.  &  P.  21),  212. 
Thurston,  People  v.,  154. 
Thurtell,  R.  v.,  258,  370,  478. 
Thurtell  v.  Beaumont  (1  Bing.  339), 

340. 
Tiler  v.  N.  Y.  C.  R.  R.  Co.  (49  N.  Y. 

142),  161. 
Timmerman  v.  Terr.  (17  Pac.  624), 

334,  354. 
Timms.     See   Smith,    Varnham   & 

Timms. 
Tippett,  R.  v.,  117. 
Tippett,  State  27.,  191. 
Toler  V.  State  (16  Ohio,  583),  150, 151, 

277. 
ToUier,  Com.  v.,  130. 
Tome  V.  Parkersburg  R.  R.  Co.  (39 

Md.  92),  216. 
Tompkins  v.  State  (32  Ala.  569),  465. 
Tooney  v.  State  (8  Tex.  Cr.  App.  452), 

309. 
Towle  V.  State  (47  Wis.  545),  86. 
Tozier,  State  v.,  270. 
Trapton  v.  State  (5  Tex.  Cr.  App.  480), 

298. 
Trannock,  R.  v.,2\. 
Travis  v.  Brown  (43  Pa.  St.  17),  221. 
Trecy,  Com.  v.,  291. 
Trilloe,  R.  v.,  449. 
Trimble  v.  State  (18 Tex.  Crim.  App. 

632),  95. 
Trogdon  v.  Com.  (31  Grat.  862),  58, 

59,  63. 
Truax  v.  State  (12  Tex.  Crim.  App. 

230),  81. 
Tuckerman,  Com.  v.,  64. 
Tucker  v.  Kellogg  (8  Utah,  11),  216, 
.   318. 


Tucker  v.  State  (57  Ga.  503),  78. 

Turbeville  v.  State  (40  Ala.  715),  308. 

Turner,  R.  v.,  57. 

Turner,  State  v.,  330. 

Turner  v.  Com.  (86  Pa.  54),  62,  150, 

293,  317. 
Turner  v.  State  (4  Lea,  206),  301,  308. 
Turrell,  People  v.,  88. 
Twyman  v.  Knowles  (13  C.  B.  224), 

297. 
Twyning,  R.  v.,  235. 
Tyner  v.  State  (5  Humph.  383),  117), 

345. 

Udderzook  v.  Com.  (76  Pa.  St.  340), 

377,  499. 
Underwood,  State  v.,  263. 
U.  S.  V.  Allen  (10  Biss.  90),  261. 
U.  S.  V.  Armstrong  (2  Curt.   C.    C. 

446),  .52. 
U.  S.  V.  Britton  (2  Mason,  464),  338. 
U.  S.  Brontin  (10  Fed.  Rep.  730),  261. 
U.  S.  V.  Carpenter  (41  Fed.  330),  332. 
U.  S.  V.  Cassidy  (67  Fed.  698),  300, 

332. 
U.  S.  v.  Cole  (5  McLean,  601),  29. 
U.  S.  V.  Craig  (4  Wash.  C.  C.  729), 

214. 
U.  S.  V.  Foulke  (6  McLean,  349),  330. 
U.  S.  V.  Freeman  (4  Mason,  505),  261. 
U.  S.  V.  Gilbert  (2  Sumn.  19),  29,  297, 

366. 
U.  S.  V.  Gunnell(5Mackey,  196),  260. 
U.  S.  V.  Harper  (33  Fed.   471).    326, 

332 
U.  S.  V.  Heath  (19  Wash.    L.    Rep. 

818),  326. 
U.  S.  V.  Hopkins  (26  Fed.  Rep.  443), 

325. 
U.  S.  V.  Howell  (26  Fed.  R.  21),  481. 
U.  S.  V.  Hughes  (34  Fed.  732),  330. 
U.  S.  V.  Jackson  (29  Fed.  Rep.  503), 

263. 
U.  S.  V.  Johns  (1  Wash.  C.  C.  363), 

28. 
U.  S.  V.  Johnson  (26  Fed.  Rep.  682), 

261,  331. 
U.  S.  V.  Jones  (31  Fed.  Rep.  718),  262. 
U.  S.  V.  Keller  (19  Fed.  633),  332. 
U.  S.  V.  King  (34  Fed.  302),  335. 
U.  S.  V.  King  (5  McLean,  208),  74, 

331. 
U.  S.  v.  King  (2  Wash.  L.  Rep.  501), 

326. 
U.  S.  V.  McGhee  (1  Curt.  C.  C.  1), 

51,156. 
U.  S.  V.  McKenzie  (35  Fed.  826),  331. 
U.  S.  V.  McMillan  (29  Fed.  Rep.  247), 

216. 
U.  S.  V.  Meagher  (37  Fed.  875),  331. 
U.  S.  V.  Means  (42  Fed.  Rep.),  261, 

326. 
U.  S.  V.   Mingo    (2  Curt.    C.   C.  1), 
53. 


TABLE  OF  CASES. 


531 


U.  S.  V.  Montgomery  (3  Sawy.  552), 

113. 
U.  S.  V.  Mott  (1  McL.  499),  119. 
U.  S.  V.  Newton  (52  Fed.  Rep.  275), 

261. 
U.  S.  V.  Neverson(l  Mack.  152),  129. 
U.  S.  V.  Pendergast  (32  Fed.  Rep. 

198),  216. 
U.  S.  V.  Romero  (35  Pac.  1059),  336. 
U.  S.  V.  Roudenbnsh  (1  Baldw.  514), 

260. 
U.  S.  V.  Smith  (2  Bond,  323),  261. 
U.  S.  V.  WiUiams(l  Cliff,  5),  112, 117, 

362,  366. 
U.  S.  V.  Zes  Cloya  (35  Fed.  493),  331. 
Unkles,  R.  v.,  365. 
Upchurch,  R.  v.,  116. 
Upham,  State  v.,  270. 

Valley,  State  v.,  252. 

Van  Sickler  v.  People  (9  Mich.  61), 

219 
Van  winkle,  State  v.,  30. 
Van  Winkle,  State  v.,  92. 
Van  Wyck  v.  Mcintosh  (4  Kern.  439), 

215. 
Van  der  Donckt  v.  Thellesson  (8  M. 

G.  &  S.  812),  163. 
Vane,  People  v.,  270. 
Vann  v.  State  (83  Ga.  44),  326. 
Varnham.     See  Smith,  Varnham  & 

Timms. 
Vatter,  State  v.,  97. 
Vaughan,  R.  v.,  244. 
Vaughn  v.  Com.  (17  Gray  576),  116. 
Verlarde,  People  v.,  264. 
Videto,  People  v.,  24,  478. 
Vinton  v.  Peck  (14  Mich.  287),  218. 

Wacaser  v.  People  (134  111.  438),  332. 
Waddington  v.  Cousins  (1  C.  &  P. 

595),  215. 
Wagner  v.  State  (107  Ind.  71),  263. 
Walbridge  v.  State  (13  Neb.  236),  280, 

332. 
Walford,  R.  v.,  471. 
Walker,  People  v.,  361. 
Walker,  Stater.,  116. 
Walker,  Stater.,  90. 
Walker  v.  Com.  (1  Leigh,  574),  58,  59. 
Walker  v.  State  (85  Ala.  7),  54. 
Walker  v.  State  (6  Tex.  Crim.  App. 

576),  179. 
Walker  v.  State  (28  Tex.  App.  503), 

264. 
Walker  v.  State  (102  Ind.  502),  263. 
Wall,  R.  r.,299. 
Wall  V.  State  (37  Ind.  453),  331. 
Wall  V.  State  (51  Ind.  453),  325. 
Wallace,  State  v.,  62. 
Wallace  v.  State  (10  Tex.  Cr.  App. 

255),  451.  452. 
Walter  v.  People  (32  N.  Y.  147),  319. 
Walworth,  People  v.,  53. 


Ward  V.  People  (3  Hill,  395),  113. 

Ward,  Stater.,  72. 

Ward,  State  v.,  151,  317. 

Ward,  State  v.,  217. 

Ward,  State  r.,  270. 

Ward  r.  State  (50  Ala.  120),  113. 

Ward  r.  State  (10  Tex.  Cr.  App.  393), 

280,  301. 
Wareing  r.  Wareing  (6  Moore's  P. 

C),  292. 
Warford,  State  v.,  90,  96. 
Warner,  People  v.,  114. 
Warner  r.  Com.  (2  Va.  Cas.  105),  344. 
Warren  r.  State  (1  la.  106),  88. 
Warrickshall,  R.  v.,  115,  119. 
Warringham,  R.  v.,  115. 
Wash.  Ins.   Co.  v.  Wilson  (7  Wis. 

169),  341. 
Washington  r.  State  (8  Tex.  App. 

377),  69. 
Waterman,  State  v.,  295,  317. 
Watkins,  State  r.,  42,  45,  62. 
Watkins  r.  Wallace  (19  Mich.  57), 

341. 
Watson,  R.  v.,  338. 
Watson,  R.  v.,  294. 
Watson  V.  Brewster  (1  Barr,  381), 

183. 
Watson  V.  Robertson's  Heirs  (15  Tex. 

333),  105. 
Watt,  Stater.,  114. 
Watt  r.  People  (126  111.  9),  326,  329. 
Way  r.  State  (35  Ind.  409),  83. 
Wayman,  People  v.,  324. 
Weaver  r.  People  (132  111.  536),  333. 
Weaver  r.  Whilden  (33  S.  C.  190), 

221. 
Webb  r.  State  (9  Tex.  Cr.  App.  490), 

333 
Webster,  Com.  r.  (5  Cush.  295),  137, 

147,  224,  225,  274,  281,  295,  303, 

336,  374. 
Webster,  R.  v.,  206. 
Weller  r.  People  (39  Mich.  16),  41. 
Welch  r.  Juggenheimer  (56  la.  11), 

341. 
Wells,  Stater.,  261. 
Welsh  r.  State  (96  Ala.  92),  124,  132, 

326  332. 
Wescombe,'R.  r.,  148,  251. 
West  r.  State  (2  Zab.  212).  215. 
West  r.  State  (76  Ala.  98),  28. 
Westron,  R.  v.,  160. 
Whalley,  R.  v.,  240. 
Wharton  v.  State  (12  So.  661),  302. 
Wharton  r.  State  (73  Ala.  366),  42, 

46,  466. 
Wheeler,  State  v. ,  96. 
Whetston  r.  State  (31  Fla.  240),  196. 
Whitby,  R.  v.,  244. 
Wliite,  Com.  v.,  71. 
White,  People  r.,  269. 
Wliite,  People  r.,  270. 
White,  R.  v.,  117,  183. 


532 


TABLE  OF  CASES. 


White,  States.,  88,463. 

White,  State  v.,  243. 

White  V.  Com.  (80  Ky.  480),  180, 370. 

White  V.  State  (72  Ala.  195),  14,  88, 

89. 
White  V.  State  (11  Tex.  769),  60. 
White  V.  State  (86  Tex.),  280. 
White  V.  State  (32  Tex.  Crim.  App. 

625),  112. 
Wliitenack  v.  Whitenack  (46  N.  J. 

Eq.  474),  350. 
Whitfield  V.  State  (25  Fla.  289),  197. 
Whiting,  R.  v.,  262. 
Whitney  v.  State  (8  Mo.  165),  113. 
Whittaker  v.  Com.  (13  Ky.  L.  Rep. 

504),  54. 
Whitten,  Stater.,  241. 
Whittle,  R.  v.,  257. 
Wicks,  People  v.,  124. 
Wileman,  People  i\,  262. 
Wilkins,  Stater.,  132. 
Wilkinson  v.  Mosely  (30  Ala.   562), 

162. 
Wilks,  R.  r.,459. 
Willaid  V.  State  (27  Tex.  Cr.  App. 

380),  117,  345.  354. 
Willard,  Cora,  v.,  96. 
Willett  V.  People  (27  Hmi,  469),  113. 
Williams,  Com.  v.,  106,  185. 
Williams,  People  t'.,  183. 
Williams,  R.  v.,  222. 
Williams,  State  v. ,  88,  89,  90. 
Williams,  Stater.,  254. 
Williams,  State  r. ,  144. 
Williams,  State  v.,  377. 
Williams,  Stater.,  132. 
WiUiams,  U.  S.  v.,  161. 
Williams  r.  Brown  (38  Ohio  St.  547), 

165. 
Williams  r.  Com.  (80  Ky.  313),  325, 

332. 
Williams  r.  East  India  Co.  (3  East, 

192),  235.  298. 
WUliams  r.  People  (101  111.  382),  117. 
Williams  r.  State  (19  Tex.  Cr.  App. 

276).  298. 
Williams  r.  State  (52  Ala.  411),  262. 

308. 
Williams  r.  State  (98  Ala.  22),  324. 
Williams r.  State (25  S.  W.  629).  195. 
Williams    r.  State   (22  Tex.    Crim. 

App.  497),  143. 
Williams  r.  Williams  (1  Hagg.  Con. 

299),  344,  350. 
Williamson  r.  State  (17  S.  W.  722), 

91. 
Williamson  r.   State  (30  Tex.    Cr. 

App.  330),  311. 
Willingham,  State  v.,  301. 
Willis  r.  State  (93  Ga.  208).  114. 
Willis  r.  State  (61  N.  W.  254),  330, 

333 
Wilmett  r.  Harmer  (8  C.  &  P.  695), 

340. 


Wilson,  Com.  v.,  164. 

Wilson,  People  v.,  271. 

Wilson,  People  v.,  81. 

Wilson  People  v.,  376. 

Wilson,  R.  r.,  125. 

Wilson  r.  Beauchamp  (50  Miss.  34), 

218. 
Wilson  r.  Kirkland  (5  HiU.  182),  214. 
Wilson  r.  State  (17  L.   R.   A.  654), 

254. 
Wilson  r.  Van  Leer  (127  Pa.  St.  371), 

211. 
Wimbish  r.  State  (89  Ga.  294).  217. 
Winchell  r.  Edwards  (57  Hi.  41),  143. 
Wings,  State  r.,  293. 
Winner,  State  iK ,   354. 
Winslow,  R.  v.,  68. 
Winslow  r.  State  (76  Ala.  42),  345. 
Winter  v.  State  (20  Ala.  39),  330. 
Winters,  People  r.,  75. 
Winthrop  r.  State  (43  la.  579),  449. 
Wisdom  r.  People,  273. 
Wisdom,  State  r.   (31  Fla.  166),  237. 
Wisdom  r.  People  (11  Col.  170),  317, 

459, 
Wishart,  R.  v. ,  245. 
Witham,  Stater.,  63,  180. 
Witherington,  People  r.,  81, 
Wohlfrom,  People  v.,  328. 
Wohlman,  Stater.,  93. 
Wolcott,  People  r.,  134. 
Wolflf,  People  r.,  333. 
Wolff,  Stater.,  88,  91. 
Wong  Ah  Foo,  People  v.,  275. 
Wood,  Stater.,  164. 
Wood,  R.  v.,  33,  180,  269. 
Wood  r.  State  (92  Ind.  269),  252. 
Woodard,  State  r.,  52. 
Woodgate,  R.  r.,  369. 
Woodman  r.  Dana  (52  Me.  13),  218. 
Woodon  r.  People  (1  Park.  Crim.  R, 

464),  215, 
Woods  r.  People  (55  N.  Y.  515),  243. 
Woodward  et  al  r.  Spiller  (1  Dana, 

180),  215. 
Wool  V.  State  (20  Ohio  St.  460),  270. 
Woolard,  State  r.,  317. 
Wooldridge  r.  State    (13  Tex.    Cr. 

App.  453).  310. 
Worcester,  Com.  v.,  262. 
Worth  r.  Norton  (33  Tex.  192),  280. 
Wright,  R.  v.,  449. 
Wright  V.  Hardy  (22  Wis.  348),  160, 

341. 
Wyatt  r.  State  (25  Ala.  9),  116. 
Wyman,  People  r.,  124. 

Yarbrough  r.  State  (16  So.  758),  301, 

324. 
Yates  r.  State  (37  Tex.  202).  90,  95. 
Yates  r.  Yates  (76  N.  C.  142),  217. 
Yend,  R.  r.,  352. 
Yeomans  r.  Petty  (40  N.  J.  Ep.  495), 

220. 


TABLE  OF  CASES. 


533 


Yewin,  R.  v.,  140. 

Young  V.  Com.  (6  Bush,  312),  265. 

Young  r.  Johnson  (123  N.  Y.  226), 

154. 
Young  V.  State  (2  Yerg.  202),  124. 
Young  V.  State  (68  Ala.  569),  124, 

194,  198. 


Young  V.  State,  (95  Ala.  4),  308. 
Younge  v.  Horner  (1  C.  &  K.  751) 
219. 

ZesCloya.  U.  S.  v.,  331. 
Zimmerman,  State  v.,  218. 


INDEX. 

ABSOLUTE  MORAL  CERTAINTY.    See  Moral  Certaintt. 
unnecessary,  306. 

ACCOMPLICE, 

confirmatory  evidence  of,  not  necessary  to  convict,  459. 

corroboration  of,  usually  required,  459. 

law  in  England  as  to,  459. 

law  in  America  as  to,  459,  460. 

credibility  of,  for  jury,  459. 

dangers  of  accomplice  testimony,  460. 

corroboration  may  be  by  circumstances,  461. 

ADULTERY, 

as  bearing  on  motive  for  crime,  44,  45. 

rule  as  to  quantum  of  proof  required  to  establish,  343,  344. 

proof  of  corpus  delicti,  346. 

circumstantial  evidence  sufficient  to  establish,  346. 

when  innocence  should  be  declared,  347. 

circumstances  usually  relied  on  to  establish,  347. 

proof  of  opportunity  alone  not  sufficient  to  establish,  348. 

opportunity  and  will  to  commit,  sufficient,  348. 

evidence  to  establish,  must  be  decisive,  35L 

ALABAMA, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  216. 

ALIBI, 

nature  of,  150. 
fabrication  of,  150. 

eflfect  of,  150. 
importance  of  verifying  time  where  alibi  is  relied  on,  230. 
amount  of  proof  necessary  to  establish,  315. 

rule  in  Iowa,  315. 

rule  in  South  Carolina,  315. 

rule  in  New  Mexico,  316. 

rule  in  Georgia,  317. 

rule  in  Michigan,  318. 

when  a  special  instruction  as  to,  unnecessary,  318. 
eflfect  of  proof  of,  271. 

evidence  as  to,  to  be  received  with  caution,  27K 
danger  of  abuse,  271,  272. 

535 


536  INDEX. 

ALIBI. — Continued. 

weight  of  evidence  as  to,  question  for  jury,  273, 

instructions  as  to,  272,  276,  295, 

evidence  as  to,  must  relate  to  what  time,  273. 

effect  of  setting  up,  when  accused,  274. 

caution  as  to  diiference  in  time,  274. 

caution  as  to  identity  of  person,  275. 

caution  as  to  lapse  of  time,  276. 

effect  of  withholding  evidence  as  to,  276. 

effect  of  unsuccessful  attempt  to  prove,  276,  277. 

effect  of  fraudulejit  attempt  to  prove,  277. 

burden  of  establishing,  is  on  defendant,  295. 

amount  of  evidence  necessary  to  establish,  295. 

ANALOGY, 

its  place  in  investigation,  12. 

ANCIENT  WRITINGS, 

proof  of  handwriting  by  comparison  with,  215. 
practice  as  to,  215. 

ATTEMPTS,    See  Previous  Attempts. 

BELIEF,  6,  14. 

BLOOD-STAINS, 

who  may  testify  as  to,  156,  193. 
character  of,  167. 
identification  by,  192. 

BRIBERY  OF  WITNESSES, 

effect  of,  upon  party  guilty  thereof,  143. 

BURDEN  OF  PROOF, 

as  to  voluntary  confessions,  114. 
as  to  alibi,  295. 

CALIFORNIA, 

rule  as  to  affect  of  silence  under  accusation,  128. 
code,  as  to  evidence,  2. 

CAUSE  OF  DEATH, 

necessary  to  show,  to  establish  corpus  delicti,  379. 

CERTAINTY.    See  Moral  Certainty. 
distinguished  from  probability,  7. 

CHANCES,  DOCTRINE  OF, 

not  applicable  to  human  affairs,  13. 

CHARACTER, 

when  can  be  shown,  58. 

when  important,  76. 

evidence  of,  to  rebut  presumption  from  recent  possession,  87. 

evidence  of  good  character,  when  important,  259., 


INDEX.  537 

CHAR  ACTER.— Continued. 

benefit  of  good,  not  restricted  to  minor  offences,  260. 

of  no  importance  if  guilt  be  clear,  260,  261. 

misleading  instructions  as  to,  261. 

to  be  considered  witli  other  facts,  262. 

value  of  proof  of,  depends  on  what,  263. 

inquiry  concerning,  limited  to  a  particular  trait,  263. 

negative  testimony  as  bearing  on,  264. 

proved  by  reputation,  265. 

mode  of  inquiry  as  to,  265. 

when  bad,  may  be  shown,  266. 

how  to  test  knowledge  of  witness  as  to,  266. 

testimony  of  accused  as  to,  268. 

testimony  as  to,  how  rebutted,  269. 

English  statute  as  to,  269. 
inquiry  as  to,  confined  to  time  previous  to  offence,  270. 
who  may  testify  as  to,  270. 
effect  of  absence  of  evidence  as  to,  270. 

CIRCUMSTANTIAL  EVIDENCE, 

cannot  be  reduced  to  mathematical  proportions,  8. 

characteristics  of,  15. 

what  is  it,  15. 

distinguished  from  direct  evidence,  15. 

compared  with  direct,  27. 

to  be  carefully  scanned,  33,  34. 

sources  of,  35. 

facts  to  be  received  in  cases  of,  36  et  seq. 

CIVIL  CASES, 

distinction  between,  and  criminal  as  to  amount  of  proof,  322,  339. 
rules  of  evidence  same  in,  as  in  criminal,  339. 

COMMUNICATED  THREATS.    See  Threats. 

COMPARISON, 

proof  of  handwriting  by,  214. 

common-law  rule,  214,  215. 
in  various  states,  216. 

COIMPLAINT,  JOINT, 

must  be  proved,  where  several  are  charged,  314. 

CONCLUSIVE  PRESUMPTIONS,  19. 

CONDUCT, 

of  complaining  party  as  throwing  light  on  charge,  241  et  seq. 

in  cases  of  rape,  241,  244. 
of  accused  as  bearing  on  his  innocence,  245. 

effect  of  language  of  accused,  245. 

unreliability  of  such  evidence,  245,  246. 
inconsistencies  of  humanity  to  be  taken  into  account,  246. 
failure  to  hide  as  bearing  on  guilt,  247. 


538  INDEX, 

CONFESSIONS, 

judicial,  definition  of,  112. 
extrajudicial,  definition  of,  112. 
voluntary,  admissible,  113. 
voluntary,  what  are,  113. 
induced  by  undue  influence,  114. 

what  amounts  to,  114. 
to  officers,  113. 
burden  of  proof  as  to,  114. 

what  evidence  necessary  to  show  voluntariness  of,  115. 
weight  to  be  attached  to,  115. 
ground  of  admissibility  of,  115. 
caution  to  be  observed  in  reception  of,  115,  118,  119. 
when  sufficient  to  convict,  116,  117. 
what  sufficient  to  corroborate,  117,  118. 
facts  admitted  not  as,  but  as  res  gestce,  118. 
not  sufficient  to  establish  corpus  delicti,  119. 
must  be  taken  as  a  whole,  122. 
weight  of,  is  for  the  jury,  123,  125. 
made  when  intoxicated,  125. 

CORPUS  DELICTI, 

in  cases  of  larceny,  78. 

proof  of,  as  corroborative  of  confessions,  116,  117. 

must  be  clearly  proved,  296. 

CORPUS  DELICTI.    See  Adultery. 
means  what,  345. 
proof  of,  involves  what,  345. 
how  proved,  346. 
proof  of,  in  adultery,  346. 
must  be  established  clearly,  352. 
no  criminality  without  crime,  352. 
must  be  proved  beyond  a  reasonable  doubt,  354. 
may  be  shown  by  circumstantial  evidence,  354. 
in  case  of  homicide,  362. 

death  must  be  shown,  362. 
discovery  of  body  best  proof,  362. 
rule  in  Texas,  363. 
rule  in  New  York,  265. 
discovery  of  body  not  required  in  all  cases,  365. 
moral  certainty  sufficient,  366. 
illustrations,  367. 
identification  of  body  necessary,  370. 

circumstantial  evidence  sufficient,  374. 
illustrations,  374  et  seq. 
cause  of  death  must  be  shown,  379  et  seq. 
direct  evidence  not  necessary,  380. 
circumstances  held  sufficient,  381. 
in  cases  of  poisoning,  384. 
who  may  testify  as  to  effect  of  poisons,  384. 
cause  of  death,  395. 


INDEX.  539 

CORPUS  DELICTI.— Con^mMed. 

various  symptoms,  385, 

appearance  of  symptoms  in  several  persons,  387. 

importance  of  chemistry,  388. 

difficultj'  as  to  vegetable  poisons,  389, 

post-mortem  imbibition,  389, 

direct  evidence  vmnecessary,  392, 

possession  of  poison  by  accused,  395, 

opportunity  to  administer  poison,  397. 

as  to  motive,  399. 

cautionary  suggestions,  399. 
importance  of  conduct  of  accused,  408, 

former  attempts,  412, 

necessity  of  caution,  414. 
in  cases  of  infanticide,  447. 

sources  of  diflSculty,  447. 

that  child  was  born  alive  necessary  to  be  shown,  449, 

question  for  jury,  450, 

hydrostatic  test,  450. 
nature  of  motive  important,  453. 

desire  to  conceal  shame,  453. 

wilful  injury  must  be  clear,  454, 
distinction  between  infanticide  and  other  cases  of  homicide,  455. 

CREDIBILITY, 
what  is,  10. 

CREDIBILITY  OF  TESTIMONY.    See  Testimont, 

CRIMES.  See  Other  Crimes  ;  Opportunity  ;  Preparation,  {Only  the 
most  important  cases  are  indexed.) 

Adultery,  62,  180,  348,  350. 

Arson,  64,  65,  66,  68,  96,  97,  114,  120, 125,  190. 

Assault,  68,  69. 

Burglary,  75,  96,  97,  105,  132,  205. 

Conspiracy,  63,  76,  132. 

Embezzlement,  64. 

Forgery,  228, 

Homicide  (see  Infanticide;  Poisoning),  59,  61,  62,  67,  68,  69,  74,  76, 
98,  100,  108,  109,  110,  119,  120,  123,  126,  129,  130,  131,  132,  133,  136, 
156,  167,  168,  169,  170,  171,  172,  191,  192,  201,  202,  240,  256,  275,  283, 
286,  312,  315,  363,  366,  367,  375,  376,  380,  382,  463,  482,  486,  489,  492, 
495,  498,  499. 

Infanticide,  104,  370,  371,  373,  451. 

Larceny,  58,  60,  66,  70,  78,  80,  94,  106,  107, 109,  131,  134,  180,  181,  201, 
206,  207,  359. 

Miscarriage,  procuring,  68. 

Obscene  letters,  sending,  70. 

Obtaining  money  by  false  pretenses,  58,  59,  63,  70. 

Poisoning,  homicide  by,  385,  386,  387,  392,  401,  411,  413,  416,  420,  424, 
428,  433,  435,  438,  439. 

Rape,  132,  153,  231,  241. 


540 


INDEX. 


CRIMES. —Con  tinned. 

Receiving  stolen  goods,  72,  95,  249. 

Robbery,  64,  181,  187,  192. 

Sending  threatening  letters,  285. 

Slander,  342. 

Uttering  false  coin,  71,  72,  74,  105,  136. 

CRIMINAL  CASES,  RULES  IN.    See  Civil  Cases. 

CRIMINALITY, 

no,  without  crime,  352. 

DEFINITION  OF, 
evidence,  1,  3. 
judgment,  1. 
testimony,  2. 
proof,  3. 
probability,  6. 
circumstantial  evidence,  15. 

DEGREES  OF  PROOF, 

no  place  in  our  law,  22. 

DEMONSTRATION, 
what  is,  4. 

DEMONSTRATIVE  EVIDENCE, 
no  degrees  in,  5,  n. 

DESTRUCTION  OF  EVIDENCE,  138. 
removal  of  marks  etc.,  146. 
attempt  to  prevent  post  mortem,  146. 
destruction  of  human  remains,  147. 

DIRECT  EVIDENCE, 

distinguished  from  circumstantial,  15. 
compared  with  circumstantial,  27. 

DISPUTABLE  PRESUMPTIONS,  19. 

ENGLAND, 

statutory  rule  in,  as  to  proof  of  other  crimes,  64. 

statutory  rule  in,  as  to  rebuttal  of  evidence  as  to  character,  269. 

EUGENE  ARAM, 

trial  of,  129  et  seq. 

EVIDENCE.    See  Circumstantial  Evidence. 
definition  of,  1,  14. 
nature  of,  1. 

distinguished  from  testimony,  1,  2. 
law  of,  embraces  what,  2. 
rules  of,  result  of  what,  2. 

are  rules  of  law,  3. 

same  in  civil  and  criminal  cases, 


INDEX.  541 


EVIDENCE.— CoTifmited. 

distinguished  from  proof,  3. 
sources  of,  3,  n. 
moral,  5. 

EXCULPATORY  PRESUMPTIONS,  233  et  seq. 

EXPERIENCE, 

basis  of  credibility,  10. 
comprehends  what,  11. 

EXPERT  TESTIMONY, 

value  of,  as  to  handwriting,  225,  226. 

principles  upon  which  admission  of,  rests,  153. 

not  receivable  as  to  obligation,  154. 

as  to  sanity,  154. 

not  receivable  as  matters  of  general  knowledge,  155. 

illustrations,  155,  156. 
not  necessary  as  to  blood-stains,  156. 
as  to  controverted  questions,  156. 
upon  what  evidence  to  be  based,  156,  157,  158. 
not  received  as  to  weight  of  evidence,  158. 
to  be  based  on  hypothetical  questions,  158. 

character  of  such  questions,  160. 
who  may  give,  162. 
value  of,  165. 

to  be  weighed  as  other  evidence,  165. 
weakness  is  inherent  in,  166. 
as  to  blood-stains,  167. 

illustrations,  167,  169,  171. 

EXPERTS.    See  Expert  Testimony. 
who  are,  162,  165. 

EXPLANATION, 

of  recent  possession,  80,  81. 
weight  to  be  attached  to,  84. 
rule  as  to,  in  Texas,  84. 
what  may  be  shown  by  way  of,  85. 
suspicions  arising  from,  85,  86. 
of  recent  possession  of  stolen  property,  255,  256. 
of  other  suspicious  appearances,  256,  257. 
fabrication  of  suspicions,  258. 

FABRICATION, 

of  suspicious  appearances  to  divert  suspicion,  258. 

FABRICATION  OF  EVIDENCE,  138. 
by  bribery  of  witnesses,  142,  143. 
to  prove  truth,  143,  144. 
self-infliction  of  wounds,  148 
as  to  alibi,  150,  151. 


542  INDEX. 

FALSE  EXPLANATIONS, 

of  suspicious  appearances,  104  et  seq. 
insufficient  to  convict  uncorroborated,  110. 

FALSEHOOD.    See  Testimony. 

FICTITIOUS  NAME, 

use  of,  as  evidence  of  guilt,  130,  138. 

FLIGHT, 

as  evidence  of  guilt,  130  et  seq. 
attempt  at,  effect  of,  131. 
what  indicative  of,  132. 
affects  whom,  132. 
after  release  on  bail,  132. 
escape  from  jail,  133. 
weight  to  be  attached  to,  135. 
may  be  referred  to  other  acts,  247. 

FOOTPRINTS, 

identification  of  accused  by,  194. 

weight  of  evidence  as  to,  194. 

not  sufficient  for  conviction,  195. 

additional  force  arising  from  peculiarities  of,  196. 

recency  of,  important,  198. 

accuracy  in  comparison  essential,  198. 

who  may  testify  as  to,  198. 

comparison  of,  need  not  be  made  in  presence  of  accused,  199. 

caution  as  to  fabrication  of,  200. 

as  to  horsetracks,  200,  201. 

illustrations,  200,  204. 

FORCE, 

weight  attached  to  variations  between  narratives,  474. 
the  effect  to  be  given  omissions,  476. 
cases  illustrating,  482  et  seq. 

FORCE  OF  CIRCUMSTANTIAL  EVIDENCE, 

considerations  bearing  on,  456  et  seq. 
circumstantial  evidence  likened  to  a  chain,  464. 

metaphor  inaccurate,  465. 
circumstantial  evidence  likened  to  a  bundle  of  rods,  466. 
depends  on  whether  facts  be  dependent  or  independent,  466,  467. 
necessity  of  harmony,  472. 

FRAGMENTS, 

of  garments,  used  in  identification,  186. 

FRAUD, 

rule  as  to  quantum  of  proof  when  there  is  a  charge  of,  343. 

GEORGIA, 

rule  in,  as  to  quantum  of  proof  to  establish  alibi,  317. 
definition  of  circumstantial  evidence  in  code  of,  15. 


INDEX.  543 


HAIR, 

identification  by,  191. 

HANDWRITING, 

usual  method  of  proof  of,  by  direct  evidence,  210. 

extent  of  knowledge  of  witness  to  be  first  shown,  210. 

who  may  testify  as  to,  311. 

knowledge  from  correspondence,  211. 

identity  of  writer  must  be  assured,  212. 

who  is  a  competent  witness,  212,  213. 

proof  of,  by  comparison,  213. 

what  is,  214. 
common-law  rule — 

comparison  from  memory,  214. 

comparison  by  court  and  jury,  214,  215. 

other  instruments  inadmissible  for  comparison,  215. 

this  changed  by  Procedure  Act,  219,  220. 

comparison  with  ancient  writings,  215. 

practice  as  to,  215. 

grounds  of  tlie  rule,  215,  216. 
rule  in  this  country — 

in  Federal  court  in  various  states,  216  et  seq. 

as  to  genuineness  of  standard,  216-219. 
question  for  court,  219. 
rule  otherwise  in  New  Hampshire,  219. 

as  to  admission  of  papers  not  already  in  case,  220. 
reasons  for  caution  in  proof  of,  221. 
imitation  of,  221. 
microscopic  examination  of,  222. 
as  to  use  of  enlarged  copies  of,  222. 
reliability  of  evidence  as  to,  223. 
peculiarities  of  spelling,  224. 
as  to  disguised  writing,  224,  225. 
weight  of  expert  testimony  as  to,  225,  226. 

may  be  tested,  226. 

HIGH  SEAS, 

proof  of  corpus  delicti  where  homicide  has  occurred  in,  365. 

HOMICIDE.    See  Corpus  Delicti  ;  Crimes. 

proof  of  corpus  delicti  in  cases  of,  362  et  seq. 
on  high  seas,  365. 
identification  of  body,  370. 
cause  of  death,  379. 

HYDROSTATIC  TEST, 

in  cases  of  infanticide,  450. 

HYPOTHETICAL  QUESTIONS.    See  Expert  Testimony. 
nature  of,  160. 
upon  what  to  be  based,  160,  162. 

IDENTIFICATION  OF  BODY, 

necessary  to  establish  corpus  delicti  in  homicide,  370. 


544  INDEX. 

IDENTIFICATION  OF  PERSON,  179. 
by  voice,  124. 

usually  by  circunastantial  evidence,  179. 
slightest  circumstances  may  be  important,  179. 
test  as  to  proximate  facts,  179. 
often  a  question  of  difficulty,  179. 

illustrations,  179-183. 
light  as  bearing  on,  182. 
voice  as  related  to,  183,  185. 
liability  of  mistake  in,  183. 
vpitness  may  testify  on  belief  as  to,  183. 
family  likeness  as  bearing  on,  184. 
photograph  used  in,  184,  185. 
by  correspondence  of  fragments,  etc.,  186. 
by  clothing,  187. 

by  various  minute  circumstances,  187,  188,  189. 
by  letters  and  postal  cards,  190. 
by  tracks,  190. 

by  wounds  on  person  of  offender,  190. 
by  permanent  marks  on  person,  190. 
by  hairs,  191. 

by  blood-stains  on  instruments  of  crime,  192. 
by  blood-stains  on  person  or  clothing  of  accused,  193. 
by  tracks  and  footprints,  q.  v.,  194. 

IDENTIFICATION  OF  PEOPERTY, 

by  circumstances  similar  to  those  which  identify  person,  205. 
liability  of  witnesses  to  error,  205-207. 
positive  evidence  not  necessary,  207,  208. 
illustrations,  207-209. 

ILLINOIS, 

effect  of  recent  possession  in,  81. 

rule  in,  as  to  proof  of  handwriting  by  comparison,  216. 

I'ule  in,  as  to  quantum  of  pi'oof  to  establish  insanity,  320. 

IMBIBITION,  POST  MORTEM.    See  Corpus  Delicti. 

INCULPATORY  CIRCUMSTANCES,  39,  177  et  seq. 

INDIANA, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  218. 
rule  in,  as  to  quantum  of  proof  to  establish  insanity,  320. 

INFANTICIDE, 

proof  of  corpus  delicti  in  cases  of,  447. 

INDIRECT  CONFESSIONAL  EVIDENCE, 
danger  of,  126. 
acts  amounting  to,  127. 
silence  as,  128. 

rule  in  California,  128. 
silence  of  co-defendant,  128. 
deportment  of  accused  in  presence  of  corpse,  128. 


INDEX.  545 

INDIRECT  CONFESSIONAL  EVIDENCE.— C'on/mwed. 
conduct  of  accused  when  arrested,  129. 
concealment  as,  130, 
disguise  as,  130. 
flight  as,  130. 

importance  of  such  indications,  135,  136. 
weight  of,  for  jury,  137. 

INNOCENCE,  PRESUMPTION  OF.    See  Presumption. 

INNOCENT, 

effect  of  criminal  charge  upon  the,  133,  134. 

IOWA, 

rule  in,  as  to  quantum  of  proof  to  establish  aUbi,  315. 

INSANITY, 

expert  testimony  as  to,  154,  156,  157,  158. 

burden  of  establishing,  as  a  defense  is  on  defendant,  295,  296. 

amount  of  evidence  necessary,  296. 

rule  as  to  quantum  of  evidence  to  establish,  319. 

former  rule,  319. 

modem  doctrine,  320. 

rule  in  Indiana,  320. 

rule  in  Illinois,  320. 

rule  in  Kansas,  321. 

INSTRUCTIONS, 

bearing  on  character,  261,  262,  270. 

as  to  alibi,  272,  273,  276. 

as  to  best  evidence,  298. 

approved  language  should  be  used  in,  308. 

few  absti-act  principles  should  be  given,  309. 

court  must  instruct  on  circumstantial  evidence  in  Texas,  309. 

charge  need  not  be  given  in  a  set  form,  310. 

illustrations  of  correct,  311. 

when  a  special,  as  to  alibi  unnecessary,  318. 

on  circumstantial  evidence  should  confine  jury  to  facts,  831. 

INSURANCE, 

as  offering  inducement  to  commit  murder,  46. 

as  motive  to  crime,  62,  65,  68. 

rule  as  to  quantum  of  evidence  in  actions  to  recover,  339  et  seq. 

INTENTION, 

what  admissible  to  show,  52. 

collateral  facts  as  showing,  52. 

rule  as  to  amount  of  evidence  to  show,  52,  53. 

evidence  of  threats  to  show,  53. 

evidence  of  previous  attempts  and  other  crimes;  57. 

INTIMIDATION  OF  WITNESSES, 

effect  of,  upon  party  guilty  thereof,  142. 
35 


546  INDEX. 

INTOXICATION, 

as  affecting  importance  to  be  attached  to  threats,  56. 
as  affecting  credibiUty  of  confessions,  125. 

INTUITION, 

explained,  4. 

JUDGMENT, 

definition  of,  1. 

JURY, 

weight  of  evidence  as  to  alibi  for,  272. 

KANSAS, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  218. 
rule  in,  as  to  quantum  of  proof  to  establish  insanity,  321. 

KENTUCKY, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  217. 

LEGITIMACY, 

presumption  in  favor  of,  234. 

LIGHT, 

quantity  of,  as  bearing  on  identification  of  person,  182. 

LOUISIANA, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  216. 
rule  in,  as  to  burden  of  proof  in  establishing  insanity,  296. 

MALPRACTICE, 

expert  testimony  as  to,  160. 

MARRIAGE, 

presumption  that  it  was  legal,  236. 

MARYLAND, 

rule  in,  as  to  proof  of  liandwriting  by  comparison,  216. 

MASSACHUSETTS, 

rule  in,  as  to  burden  of  proof  in  establishing  insanity,  296. 

MAXIMS, 

qui  mendax  in  uno  mendax  in  omnibus,  237. 
omnia  proesmnuntur  contra  spoliatorem,  138. 
prcesumptio  judicator  potentior  qum  est  benignior,  250. 

MICHIGAN, 

rule  in,  as  to  quantum  of  proof  to  establish  alibi,  318. 

MISSOURI, 

effect  of  recent  possession  in,  82. 

rule  in,  as  to  proof  of  handwriting  by  comparison,  216. 

MORAL  CERTAINTY, 
what  is,  6. 
sufficient  to  convict,  301. 


INDEX.  54- 

MORAL  CERT AmTY.— Continued. 
full  proof,  302. 
definition  of,  303  et  seq. 
absolute  moral  certainty  disapproved,  806. 

MORAL  EVIDENCE, 
what  is,  5. 

MORAL  PROBABILITY, 
denotes  what,  7. 

MOTIVE, 

application  of  temi,  40. 

judged  by  conduct,  41. 

what  may  be  proved  to  show,  41. 

not  necessarily  commensurate  with  crime  charged,  41. 

illustrations  touching,  41  et  seq. 

not  necessary  to  establish,  47. 

object  of  establishing,  48. 

admissibility  of  collateral  facts,  48 

effect  of  absence  of,  84. 

adequacy  of,  unimportant,  49. 

absence  of,  creates  presumption  of  innocence,  248. 

difficulty  of  investigating,  248. 

varies  according  to  character.  248. 

is  often  out  of  proportion  to  crime,  248. 

absence  of,  not  material  where  guilt  clear,  249. 

act  to  be  referred  to  least  guilty  motive,  249. 

effect  of  counteracting  motive,  250. 

NEGATIVE, 

difficulty  of  proving  a,  291. 

NEW  HAMPSHIRE, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  218. 
genuineness  of  standard,  a  question  for  jury,  219. 

NEW  MEXICO, 

rule  in,  as  to  quantum  of  proof  to  establish,  316. 

NEW  YORK, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  217. 
rule  in,  as  to  what  writings  are  admissible,  220. 
rule  in,  as  to  discovery  of  body  in  cases  of  homicide,  365. 
rule  in,  as  to  identification  of  dead  body,  374. 

NORTH  CAROLINA, 

rule  in,  as  to  proof  of  hand\vriting  by  comparison,  217. 

OHIO, 

rule  in,  as  to  who  may  testify  as  to  handwriting,  221. 

OPINION.    See  Expert  Testimony. 
when  witness  may  give,  153. 


548  I^I^EX. 

OPINIONS  CITED  OF, 

Abbott,  L.  C.  J.,  293. 

Alderson,  B.,  33,  123,  157,  305. 

Bacon,  Lord,  50. 

Bayley,  J.,  89,  398,  356. 

Best,  J.,  355. 

Bigelow,  J.,  291. 

Birchard,  J. ,  335. 

Bishop,  16. 

Bolland,  B.,  183. 

Boyle,  L.  J.,  337. 

Bramwell,  B.,  356. 

Brougham,  Lord,  392. 

Buller,  J.,  28,  144. 

Burke,  38,  38. 

Campbell,  C.  J.,  49,  51,  70,  116,  164. 

Choate,  302. 

Clarendon,  Lord,  120,  473,  474. 

Cockburn,  L.  J.,  167,  263,  322,  338,  358. 

Coke,  Lord,  144,  235,  246. 

Coleridge,  C.  J.,  92,  359. 

Coltraan,  J.,  244. 

Cooley,  C.  J.,  261. 

Cottenliam,  Lord,  166. 

Dallas,  L.  C.  J.,  337. 

Denman,  Lord,  215,  235. 

Depew,  J.,  341. 

Earl,  J.,  47,  153,  354. 

Eldon,  Lord,  222,  470. 

Ellenborough,  Lord,  259,  292,  474. 

Erie,  J.,  66,  209,245,  269. 

Erskine,  Lord,  33. 

Finch,  J. ,  168. 

Finch,  Lord,  387. 

Fitzgerald,  J.,  365. 

Foster,  Sir  M.,  126,  319. 

George,  B.,  277. 

Gibson,  C.  J.,  30. 

Gould,  J.,  365. 

Gray,  J.,  30. 

Gi'eene,  J.,  465. 

Greenleaf,  Prof.,  112. 

Grover,  J. ,  253. 

Gurney,  B.,  89,  133,  255,  323. 

Hale,  Sir  M.,  99,  239,  242,  322,  333. 

Hampden,  48. 

Harvey,  J.,  149. 

Helm,  J.,  465. 

Holroyd,  387,  355. 

Hyde,  C.  J.,  149. 

Johnson,  J.,  369. 


INDEX.  649 


OPINIONS  CITED  OF.— Continued. 
Johnston,  J.,  365. 
Legge,  B.,  28,  337. 
Littledale,  J.,  110,  116,  123. 
Locke,  Jno.,  14. 
Lush,  J.,  68. 
McClellan,  J.,267. 
Macdonald,  C.  B.,  29,  230,  305. 
McGill,  Ordinary,  224. 
Mansfield,  Lord,  139, 153,  184,  473. 
Maule,  J.,  90,  358,  299. 
Meadowbank,  Lord,  306,  361. 
Nicholl,  Sir  John,  223. 
Paley,  27,  323,  470. 
Park,  J.,  198,  213. 
Parke,  B.,  69,  118,  268,  356,  477. 
Patteson,  J.,  95,  157,  175. 
Patterson,  J.,  64. 
Piatt,  J.,  41. 
Playfair,  469. 

Pollock,  C.  B.,  116,  314,  327,  473. 
Pratt,  C.  J.,  189. 
Richardson,  Dr.,  169. 
noUe,  B.,  116,  225. 
Roscoe,  47,  61,  379. 
Sargent,  C.  J.,  219. 
Shaw,  C.  J.,  137,  260,  315,  336,  347. 
Sherwood,  J.,  185. 
Starkie,  16,  466. 
Stephen,  J.,  170. 
Stewart,  40. 
Story,  J.,  365,  478. 
Stowell,  Lord,  345,  346,  850. 
Strong,  J.,  155. 
Taylor,  J.,  224. 
TindaU,  C.  J.,  156,  259,  319. 
Tenterden,  C.  J.,  212. 
Walworth,  J.,  24. 
Wharton,  Francis,  194. 
Wightman,  J.,  89. 
Willes,  J.,  65. 
Williams,  J.,  125. 
Wilson,  J.,  14,  26. 

OPPORTUNITY.    See  Adultery. 

OPPORTUNITY  TO  COMMIT  CRIME, 
as  bearing  on  guilt,  74  et  seq. 

OTHER  CRIMES.    See  Previous  Attempts. 

PENNSYLVANIA, 

rule  in,  as  to  proof  of  other  crimes,  63. 


550 


INDEX. 


PENNSYLVANIA.— Confinwed. 

rule  in,  as  to  what  papers  are  admissible  to  confirm  proof  as  to  hand- 
writing, 221. 

PERJURY, 

two  witnesses  required  to  convict  in  Texas,  458. 

PHOTOGRAPHS, 

use  of,  to  identify  accused,  184,  185. 
use  of,  to  identify  dead  body,  377. 

POISON.    See  Corpus  Delicti. 

murder  by,  62,  67,  105,  109,  110,  144,  147. 

possession  of,  76,  77. 

corpus  delicti  in  cases  of  death  by,  384  et  seq. 

POSSESSION.    See  Recent  Possession. 
of  means  of  crime,  74  et  seq. 
assignment  of  false  reasons  for,  76. 
of  husband  not  that  of  wife,  91,  92. 
when  that  of  husband  and  wife  together,  92. 

POST  MORTEM  IMBIBITION.    See  CORPUS  Delicti,  389. 

PREGNANCY, 

expert  testimony  as  to,  154. 

PREPARATION  TO  COMMIT  CRIME, 
as  bearing  on  guilt,  74  et  seq. 

PRESUMPTIONS, 
nature  of,  18. 
legal,  19. 

natural  and  legal,  19. 
conclusive,  19. 
disputable,  19. 
must  be  based  on  reason,  21. 
violent,  24. 
probable,  24. 
slight,  24. 
criticism  on  classification  of,  24  et  seq. 

PRESUMPTION  OF  INNOCENCE, 

when  arises  from  absence  of  motive,  48,  49. 
from  marital  relation,  43. 
prevails  till  overpowered,  233. 
burden  of  proof  on  prosecution ,  233. 
rule  in  civil  cases  distinguished,  233. 
has  effect  of  evidence,  234, 
various  illustrations,  234-236. 

PRESUMPTION  ARISING  FROM  RECENT  POSSESSION, 
of  fruits  of  crime,  78  et  seq. 
is  it  one  of  fact  or  law,  79,  80. 
overcome  by  explanation,  80  et  seq. 


INDEX.  551 

PRESUMPTION  ARISING  FROM  RECENT  POSSESSION— Conttnwed. 
rebutted  by  alibi,  87. 
effect  of  good  character  on,  87. 
element  of  time  in  connection  with,  88. 

PRESUMPTIVE  EVIDENCE, 

not  synonymous  with  circumstantial,  16. 

PREVIOUS  ATTEMPTS  AND  OTHER  CRIMES, 
proof  of,  not  generally  admissible,  57,  58. 
exception  to  the  rule,  59. 

illustrations,  59,  60. 
purposes  for  which  admitted,  61. 
reasons  for  the  admission,  61. 

illustrations,  62,  63. 
Pennsylvania  rule,  63. 
English  rule,  64. 

illustrations,  64  et  seq. 
admitted  to  show  guilty  knowledge,  70  et  seq. 

PRIMA  FACIE  PROOF, 

in  larceny,  what  is,  78. 

in  West  Virginia,  81. 
in  Illinois,  81. 
in  Missouri.  82. 
general  rule,  82. 
recent  possession  not,  in  burglary,  97. 

PROBABILITY, 
defined,  6. 
what  is,  324. 

PROOF, 

distinguished  from  evidence,  3. 

QUANTITY  OF  EVIDENCE.    See  Rules. 
QUANTUM  OF  PROOF.    See  Rules  ;  Alibl 

rule  as  to,  in  an  action  on  insurance  policies  where  arson  is  charged, 
339. 

rule  as  to,  in  actions  for  slander  and  libel  where  justification  im- 
putes crime,  339,  341. 

rule  as  to,  in  civil  actions  where  fraud  is  charged,  343. 

QUESTION  OF  LAW  OR  OF  FACT, 

presumption  from  recent  possession,  which,  79,  80. 
recent  possession,  what  is,  question  of  fact,  89. 
whether  possession  is  independent  question  of  fact,  92,  93. 
credibility  of  confessions  is  question  of  fact,  123,  125. 
whether  confession  is  voluntary  question  of  law,  115. 

V 

Rape, 

expert  testimony  in  case  of,  153,  154,  155. 

REASONABLE  DOUBT.    See  Rules. 

instructions  concerning,  324,  327  et  seq. 


552  INDEX. 

REASONABLE  TfOUBT.— Continued. 
definition  of,  326  et  seq. 
not  a  possible  doubt,  325. 
question  as  to,  is  relative,  326. 
not  an  indefinable  doubt,  331. 
may  arise  from  want  of  evidence,  332. 
rule  as  to,  must  be  applied  to  whole  facts  of  case,  333. 

RECENT  POSSESSION, 

of  fruits  of  crime,  78  et  seq. 

stress  to  be  laid  on  nature  of  possession,  79. 

may  be  explained,  80,  81,  84. 

to  be  considered  with  other  evidence,  81. 

prima  facie  proof,  where,  81,  82, 

what  is,  depends  on  property,  88. 

element  of  time  as  bearing  on,  88  et  seq. 

a  relative  term,  88. 

what  is,  a  question  of  fact,  89. 

must  be  exclusive,  90,  91. 

of  husband,  wife,  91,  92. 

whether  possession  is  in  defendant,  question  of  fact,  92,  93. 

nature  of  crime  inferred  from,  94  et  seq. 

English  statute  bearing  on,  95. 

circumstances  of  each  case  to  decide,  96. 

not  prima  facie  proof  of  burglary,  97. 

circumstances  may  corroborate,  98. 

as  bearing  on  homicide,  98. 

importance  of  corroboration,  99. 

identity  of  goods  to  be  established,  100. 

illustrations,  100,  101. 
as  to  money,  101. 
corroborative  circumstances,  102,  103. 

REPUTATION, 

what  is,  265, 

as  bearing  on  character,  265. 

RES  GEST^, 

facts  admissible  as,  not  as  confessions,  118. 

RULE  OF  EVIDENCE, 

same  in  civil  and  criminal  cases,  339. 
rule  same  in  all  civil  cases,  341. 

RULES  APPLICABLE  TO  CIRCUMSTANTIAL  EVIDENCE,  379  et  seq. 
facts  must  be  clearly  proved,  280, 

this  rule  indispensable,  280. 

each  necessary  fact  to  be  proved,  281. 

proof  of  immaterial  facts  not  necessary,  282. 

illustrations,  282  et  seq. 
burden  of  proof  is  on  party  asserting  fact,  291. 

a  universal  rule,  291. 

criminality  never  to  be  presumed,  292. 


INDEX.  65a 

RULES  APPLICATLE  TO  CIRCUMSTANTIAL  EVIDENCE.— Con^nweA 

burden  shifts,  292. 

effect  of  failure  to  explain ,  292. 

as  to  burden  of  establishing  guilt,  293. 

burden  of  any  particular  defense  is  on  defendant,  295. 
as  to  alibi,  295. 
as  to  insanity,  295,  296. 
best  evidence  must  be  adduced,  297  et  seq. 

as  to  circumstantial  evidence  in  proof  of  corpus  delicti,  297. 

as  to  establishing  non-consent,  298. 

instructions  as  to,  298. 

this  rule  applicable  to  all  facts,  299. 
inculpatory  facts  must  be  incompatible  with  innocence,  300  et  seq, 

importance  of  this  rule,  300. 

not  every  hypothesis  need  be  excluded,  300. 

moral  certainty  must  be  produced,  301. 

the  true  test,  302. 

coincidence  of  circumstances  with  guilt  insuflScient,  302. 

full  proof,  what  is,  303. 
moral  certainly  defined,  303  et  seq. 

circumstances  need  not  have  force  of  testimony  of  one  witness,  306. 
absolute  moral  certainty  not  required,  306. 

proof  to  a  moral  certainty  and  proof  beyond  reasonable  doubt  syn* 
onymous,  308. 

illustrations,  311  et  seq. 
as  to  joint  complicity,  314. 
as  to  defence  of  alibi,  315. 
as  to  defence  of  insanity,  319. 

distinction  between  burden  and  quantum  of  proof,  315. 
if  there  is  reasonable  doubt,  acquital  must  follow,  321. 
firmness  of  this  rule,  324. 

SILENCE, 

effect  of,  when  accused  of  crime,  128. 

SLANDER  AND  LIBEL, 

rule  as  to  quantum  of  evidence  in  action  for,  341. 

SOURCES  OF  EVIDENCE,  3,  n. 

SOURCES  OF  CIRCUMSTANTIAL  EVIDENCE,  35. 

SOUTH  CAROLINA, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  220. 
rule  in,  as  to  quantum  of  proof  to  establish  alibi,  315. 

STAINS.    See  Blood-stains. 

sSUPPRESSION  OF  EVIDENCE,  138. 
Armory  v.  Delamirie,  139. 
weight  to  be  given  to,  140,  141. 

of  no  weight  unless  evidence  known  to  accused,  141. 
effect  of,  when  evidence  of  equal  weight  is  produced,  143. 
witnesses  of  prosecution,  142. 


554  INDEX. 

SUPPRESSION  OF  EYWE^CE.— Continued. 
intimidation  of  witnesses,  143. 

SUSPICIOUS  APPEARANCES, 

and  explanations  thereof,  104  et  seq. 
unexplained,  insufficient  to  convict,  108. 

TATTOO  MARKS, 

identification  by,  190. 

TEXAS, 

rule  in,  as  to  proof  of  handwriting  by  comparison,  217. 
rule  in,  as  to  discovery  of  body  in  cases  of  homicide,  363. 

TESTIMONY, 

distinguished  from  evidence,  1. 
definition  of,  2. 
effect  of,  8. 
fallibility  of,  31  et  seq. 
presumption  as  to  truth  of,  237. 
credibility  of,  237. 

jurors  best  judges  as  to,  237. 

considerations  affecting,  237. 

faith  in,  source  of  error,  237. 

effect  of  falsehood,  237. 

circumstantiality  of  detail,  a  test  of  sincerity,  238. 
illustrations,  238-240. 

TIME,  IMPORTANCE  OF.    See  Alibi. 

TIME, 

as  affecting  recent  possession,  88  et  seq. 

THREATS, 

as  indicative  of  intention,  53  et  seq. 

admissibility  of,  and  reasons  therefor,  53,  54. 

illustrations  of,  54. 

accompanied  by  exhibition  of  weapon,  54. 

made  in  general  terms,  55. 

made  against  others,  55. 

in  trials  for  conspiracy,  55. 

against  railway  companies,  55,  56. 

intoxication  as  affecting,  56. 

weight  to  be  attached  to,  56,  57. 

the  element  of  time,  56. 

by  deceased,  252. 

when  important,  252. 

admissible  for  what  purpose,  252. 

when  antecedent  threats  are  inadmissible,  252. 

uncommunicated  to  defendant,  252. 

as  differing  from  communicated  threats,  253. 
for  what  purposes  admissible,  254. 

TRACKS.    See  Footprints. 


INDEX.  555 

TRUTH, 

of  testimony,  presumption  in  favor  of,  234. 

TRUTHS, 

classification  of,  4. 

UNCOMMUNICATED  THREATS.    See  Threats. 

UTAH. 

rule  in,  as  to  proof  of  handwriting  by  comparison,  218. 

VALUE,  RELATIVE, 

of  direct  and  circumstantial  evidence,  27. 
views  concerning,  28  et  seq. 
criticism  of,  28  et  seq, 

VALUE  OF  CIRCUMSTANTIAL  EVIDENCE, 
considerations  touching,  477  et  seq. 

VERIFICATION  OF  TIME, 

internal  evidences  most  satisfactory,  227. 
importance  of,  in  cases  of  alibi,  230. 

VOICE, 

in  relation  to  identification  of  person,  124,  183,  185. 

WEST  VIRGINIA, 

effect  of  recent  possession  in,  81. 

WIFE,  MURDER  OF, 

presumption  from  marital  relation,  43. 

facts  overcoming  presumption,  44. 

failure  of  pecuniary  hopes  as  motive  for,  46, 


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